The German Freight Forwarders’ Standard Terms and Conditions 2017 (Allgemeine Deutsche Spediteurbedingungen 2017 – ADSp 2017) are recommended for use as of 1 January 2017 by the Federal Association of German Industry (BDI), the Federal Association of German Wholesale, Foreign Trade and Services (BGA), the Federal Association of Road Haulage, Logistics and Disposal (BGA), the Federal Association of Furniture Forwarders and Logistics (AMÖ), the Federal Association of Transport and Logistics in Industry and Trade (BWVL), the Association of the German Chambers of Industry and Commerce (DIHK), the Federal Association of German Freight Forwarders and Logistics Operators (DSLV) and the German Retail Federation (HDE). This advice is non-binding and the contract parties are free to make agreements that deviate from the contents of this recommendation
1. Definitions
1.4 Consignee
Legal person to whom the goods shall be deliveredaccording to the Freight Forwarding Contract or validinstruction of the Principal or other persons authorised todispose of.
1.11 Damage Case/Damage Event
Damage Case means, when, due to an external process, aclaimant raises a claim on the basis of a Freight ForwardingContract or in lieu of a freight forwarding claim;Damage Event means, when, due to an external process,several claimants raise claims on the basis of severalFreight Forwarding Contracts.
1.6 Dangerous Goods
Dangerous Goods are goods that have the potential toendanger people, Vehicles or legal interests of third partiesduring the course of standard transportation, warehousingor other activities. In particular, hazardous goods aredefined as goods that fall in the scope of application ofstatutes and regulations relating to azardous goods,such as provisions covering dangerous materials, water orgarbage.
1.1 Delivery
The term of Delivery includes also the delivery in thewarehouse business.
1.13 Freight Forwarder
Legal person, which concludes a Freight Forwarding Contractwith the Principal. Freight Forwarders are particularlycarrier according to section 407, Freight Forwarderaccording to section 453, warehouse keeper according tosection 467 and sea freight carrier according to sections481, 527 HGB.
1.14 Freight Forwarding Contracts (“Verkehrsvertrдge”)The ADSp cover all Freight Forwarding Contracts undertakenby the Freight Forwarder as contractor for all activities,regardless of whether they are freight forwarding, carriageof goods (by sea), warehousing or other, typical servicespertaining to the freight forwarding business, such ascustoms handling, tracking of goods or cargo handling.These terms and conditions also apply to all typicallogistical services included in freight forwarding, if theseare in relation to the transport or warehousing of goods,in particular to activities such as the creation of loadingunits, consignments, labelling, weighing of goods andreturns processing.for use on instruction by the Principal shall also be deemedas Freight Forwarding Contracts (“Lohnfuhrvertrдge”).
1.12 Interfaces
After acceptance and before Delivery of the goods by theFreight Forwarder, Interfaces are defined as any transition ofthe goods from one legal person to another an y transhipmentfrom one Vehicle to another, any (temporary) storage.
1.7 Loading Means
Means for the aggregation of Packages and for the creationof loading units, such as pallets, container, swap trailers, bins.
1.16 Material Contractual Obligations
Material Contractual Obligations are defined as those thatinitially enable the contractually agreed fulfilment of theFreight Forwarding Contract and on which the contractingpartner is entitled to reasonably rely on.
1.10 Packages
Single items or units formed by the Principal for the fulfilmentof the order with or without Loading Means, which theFreight Forwarder must handle as one ensemble (freight itemas defined by sections 409, 431, 504 German CommercialCode (HGB).
1.8 Place of Loading/Discharge
The postal address, if the parties have not agreed on a moreprecise location.
1.19 Point of Time
Agreed Point of Time for the arrival of the Freight Forwarderat the Place of Loading or Place of Discharge.
1.2 Principal
Legal person which concludes a Freight Forwarding Contractwith the Freight Forwarder.
1.15 Shipper
Legal Person, which hands over the goods for transportationaccording to the Freight Forwarding Contract or on a validinstruction.
1.3 Theft-Sensitive Goods
Theft-Sensitive Goods are those exposed to an increasedrisk of robbery and theft, such as money, precious metals,jewellery, watches, precious minerals, art, antiques, checkbooks, credit cards and/or other payment means, stocks andsecurity papers, documents, spirits, tobacco, entertainmentelectronic goods, telecommunications goods, IT equipmentand accessories as well as smart cards.
1.18 Time Frame
Agreed Time Frame for the arrival of the Freight Forwarder atthe Place of Loading or Place of Discharge.
1.9 Time of Performance
The time (date, time of day) up to a particular performancemust be taken place, for example a Time Frame or Point ofTime.
1.17 Valuable Goods
Good, at the time and place of taking over, with an actualvalue of at least 100 Euro/kg.
1.5 Vehicle
Means of transport for the transportation of goods on trafficroutes.
2. Scope of application
2.1 The ADSp cover all Freight Forwarding Contracts undertakenby the Freight Forwarder as contractor.
2.2 Statutory provisions which cannot be modified by pre-formulatedstandard terms and conditions take precedence overthe ADSp.
2.3 The ADSp do not apply to businesses that are exclusivelydedicated to:
2.3.1 packaging,
2.3.2 transportation and warehousing of towed or salvaged goods,
2.3.3 transportation and warehousing of removal goods accordingto section 451 HGB,
2.3.4 storage and digitalisation of files; files are all types of embodiedand digitalised business papers, documents, data storagemediums and similar objects for information collection,
2.3.5 abnormal and heavy-load transports, which require a transportationregulation permission or exception, crane servicesand associated assembly work,
2.4 The ADSp do not apply to Freight Forwarding Contracts withconsumers as defined in Section 13 German Civil Code (BGB).
3. Obligation of the Principal regarding placing oforders, information requirements, special goods
3.1 The Principal shall inform the Freight Forwarder about allrelevant parameters affecting the carrying out of the order.These include
3.1.1 addresses, type and quality of the goods, the gross weight(including packaging and Loading Means) or otherwisespecified quantities, marks, numbering, quantities and typeof Packages, specific haracteristics of the goods (such aslive animals and plants, perishability), the value of the goods(for example for customs purposes or the insurance of goodsaccording to clause 21 ADSp) and Delivery timesfor use on instruction by the Principal shall also be deemedas Freight Forwarding Contracts (“Lohnfuhrvertrдge”).
1.12 Interfaces
After acceptance and before Delivery of the goods by theFreight Forwarder, Interfaces are defined as any transition ofthe goods from one legal person to another an y transhipmentfrom one Vehicle to another, any (temporary) storage.
1.7 Loading Means
Means for the aggregation of Packages and for the creationof loading units, such as pallets, container, swap trailers, bins.
1.16 Material Contractual Obligations
Material Contractual Obligations are defined as those thatinitially enable the contractually agreed fulfilment of theFreight Forwarding Contract and on which the contractingpartner is entitled to reasonably rely on.
1.10 Packages
Single items or units formed by the Principal for the fulfilmentof the order with or without Loading Means, which theFreight Forwarder must handle as one ensemble (freight itemas defined by sections 409, 431, 504 German CommercialCode (HGB).
1.8 Place of Loading/Discharge
The postal address, if the parties have not agreed on a moreprecise location.
1.19 Point of Time
Agreed Point of Time for the arrival of the Freight Forwarderat the Place of Loading or Place of Discharge.
1.2 Principal
Legal person which concludes a Freight Forwarding Contracwith the Freight Forwarder.
1.15 Shipper
Legal Person, which hands over the goods for transportationaccording to the Freight Forwarding Contract or on a validinstruction.
1.3 Theft-Sensitive Goods
Theft-Sensitive Goods are those exposed to an increasedrisk of robbery and theft, such as money, precious metals,jewellery, watches, precious minerals, art, antiques, checkbooks, credit cards and/or other payment means, stocks andsecurity papers, documents, spirits, tobacco, entertainmentelectronic goods, telecommunications goods, IT equipmentand accessories as well as smart cards.
1.18 Time Frame
Agreed Time Frame for the arrival of the Freight Forwarder atthe Place of Loading or Place of Discharge.
1.9 Time of Performance
The time (date, time of day) up to a particular performancemust be taken place, for example a Time Frame or Point ofTime.
1.17 Valuable Goods
Good, at the time and place of taking over, with an actualvalue of at least 100 Euro/kg.
1.5 Vehicle
Means of transport for the transportation of goods on trafficroutes.
2. Scope of application
2.1 The ADSp cover all Freight Forwarding Contracts undertakenby the Freight Forwarder as contractor.
2.2 Statutory provisions which cannot be modified by pre-formulatedstandard terms and conditions take precedence overthe ADSp.
2.3 The ADSp do not apply to businesses that are exclusivelydedicated to:
2.3.1 packaging,
2.3.2 transportation and warehousing of towed or salvaged goods,
2.3.3 transportation and warehousing of removal goods accordingto section 451 HGB,
2.3.4 storage and digitalisation of files; files are all types of embodiedand digitalised business papers, documents, data storagemediums and similar objects for information collection,
2.3.5 abnormal and heavy-load transports, which require a transportationregulation permission or exception, crane servicesand associated assembly work,
2.4 The ADSp do not apply to Freight Forwarding Contracts withconsumers as defined in Section 13 German Civil Code (BGB).
3. Obligation of the Principal regarding placing oforders, information requirements, special goods
3.1 The Principal shall inform the Freight Forwarder about allrelevant parameters affecting the carrying out of the order.These include
3.1.1 addresses, type and quality of the goods, the gross weight(including packaging and Loading Means) or otherwisespecified quantities, marks, numbering, quantities and typeof Packages, specificcharacteristics of the goods (such aslive animals and plants, perishability), the value of the goods(for example for customs purposes or the insurance of goodsaccording to clause 21 ADSp) and Delivery times
4.8.4 the allocation of a shipment tracking system, unless it isin line for this sector of industry. Clause 14 ADSp remainsunaffected.
4.8.5 returns, detours and hidden additional cargo.If in deviation to the actual order, one or more Packages arehanded over and accepted for transportation by the FreightForwarder, then the Freight Forwarder and the Principalconcludes a new Freight Forwarding Contract about thesegoods. In case of returns or hidden additional cargo and inabsence of a separate agreement, the terms and conditionsof the original Freight Forwarding Contract will apply. Clause5.2 ADSp remains unaffected.
4.9 Further service and information obligations, for examplequality management measures and their auditing, monitoringand evaluation systems as well as key performanceindicators needs to be expressly agreed.
5. Contact person, electronic communication anddocuments
5.1 Upon request of a contracting party, each side will nominateone or more contact persons to receive information, explanationsand enquiries regarding the fulfilment of the contractand exchange names and addresses. This information needsto be updated in case of changes. If either contracting partyfails to provide details for a contact person, then the relevantsignatory to the contract shall be the designated contactperson.Information obligations, which exceeds the obligation instatutory provisions, for example measures of the FreightForwarder in case of disruptions, in particular, an imminentdelay during takeover or Delivery, obstacles to carriage andDelivery, damages to the goods or other disruptions (emergency
concept) needs to be agreed separately.
5.2 In the absence of an expressly agreement, contractualstatements by warehousing or transport personnel requireapproval from the respective party to be considered valid.
5.3 The Principal takes care of the required declarations to besupplied by the Principal’s Shipper or Consignee during thefulfilment of the contract at the Place of Loading and Placeof Delivery, and of real actions, such as Delivery and receiptof the goods.
5.4 If agreed between the Principal and the Freight Forwarder,the parties will transmit and receive the shipping details,including the creation of the invoice, by electronic means(electronic data interchange / remote transmission). Thetransmitting party carries the responsibility for the loss,completeness and validity of any sent data.
5.5 In case of an agreement according to clause 5.4 ADSp, theparties ensure that their IT system is ready for operation andthat data can be processed appropriately, including the usualsafety and control easures, to protect the electronic dataexchange and prevent unauthorized access, modification, lossor destruction by third parties. All parties are obliged to givetimely notification of any changes to their IT systems that
could affect the electronic data interchange.
5.6 Electronic or digital documents, in particular proof of deliveries, shall be considered equal to written documents.Furthermore, each party is entitled to archive written documentationin exclusively electronic or digital format and toeliminate originals, the latter always in consideration of thelegal regulations regarding the same.
6. Packaging and labelling duties of the Principal
6.1 The Principal shall pack the goods, and if required, clearly andpermanently label all Packages with their required identifications,such as addresses, marks, numbers and symbolsrelating to the handling and characteristics of the goods. Oldidentification marks must be removed or garbled. The sameapplies for Packages.
6.2 Furthermore, the Principal is responsible for:
6.2.1 identifying all items belonging to the same shipment, toensure easy recognition,
6.2.2 ensuring that Packages, if required, cannot be accessed withoutleaving external traces.
7. Securing cargo and supervisory duties of theFreight Forwarder
7.1 In all cases where loading and discharge occurs at more thanone location, the Freight Forwarder takes care for the securityof cargo until the last Place of Discharge and at all times, butnot before the completion of loading in a transport safetymanner.
7.2 The Freight Forwarder shall conduct controls at all Interfaces.The Freight Forwarder shall check completeness and identityof the goods, their apparent good order and condition aswell as all seals and locks and record any irregularities in theaccompanying documents or via separate notification.
8. Receipt
8.1 The Freight Forwarder shall issue a certificate of receipt withreservations noted, if necessary.In case of doubt, the certificate of receipt issued by theFreight Forwarder only confirms the number and type ofPackages, but not their content, value, weight or othermeasurements.
8.2 Previously loaded or sealed loading units, such as containersor swap bodies and previously transmitted data, the accuracyof the certificate of receipt regarding quantity and type ofloaded Packages is vitiated, if the Freight Forwarder notifiesthe Principal on differences (in quantity) or damages, immediatelyafter unloading the loading unit.
8.3 The Freight Forwarder must request proof of Delivery fromthe Consignee in form of a Delivery receipt listing all Packagesas outlined in the order or other accompanying documentation.Should the Consignee refuse to issue a Deliveryreceipt, the Freight Forwarder must request instructions fromthe Principal.
The Principal can demand the Delivery receipt for a period ofone year after the goods have been delivered.
8.4 As receipt for takeover or Delivery of the goods counts anysigned document which gives evidence for fulfilment of theorder, such as Delivery notes, forwarders certificate of receipt,consignment note, sea way bill, consignment bill or a bill oflading.
8.5 The certificate of receipt and Delivery receipt can also beissued electronically or digitally, unless the Principal requeststhe issuing of a consignment note, sea way bill, consignmentbill or bill of lading.
9. Instructions
Upon conclusion of the contract, the Freight Forwarder mustfollow all instructions regarding the cargo, unless carryingout such instructions poses disadvantages to his business ordamages to consignments of other Principals or Consignees.If the Freight Forwarder intents not to follow an instruction,then the Freight Forwarder shall inform the instructorimmediately.
10. Freight payment, cash on Delivery
10.1 Notifications by the Principal to the effect that the ordershould be executed freight collect or for the account of theConsignee or a third party, for example according to Incoterms,do not exempt the Principal from his obligation to paythe Freight Forwarder its remuneration and outlays, includingfreights, customs charges and other expenses. Freight collectinstructions, for example according to section 422 HGB,Article 21 CMR, remain unaffected.
11. Default of loading and Delivery times,demurrage
11.1 In cases where the Principal must load or unload the Vehicle,the Principal has the obligation to do so within the agreed,otherwise within a reasonable loading and unloading time.
11.2 If, in case of carriage of goods by road, the parties agree on aTime Frame or Point of Time or is such notified by the FreightForwarder without objection by the Principal, Shipper or Consignee,the loading and unloading time – irrespective of thenumber of shipments per Place of Loading and Discharge -for full truck loads, but with the exception for bulk goods, forVehicles with 40 tons maximum permissible weight shall be
maximum 2 hours for loading and unloading in general. Thetimes shall be reduced appropriately for Vehicles with a lowermaximum permissible weight in the individual case.
11.3 The loading or unloading time begins with the arrival of theroad vehicle at the designated Place of Loading and Discharge(for example, by notifying the gate keeper), and endswhen the Principal has completed all its duties.
However, if a Time of Performance has been agreed for thearrival of road Vehicles at the Place of Loading and Discharge,the loading and unloading time does not begin before theagreed presentation time.
11.4 In cases where the contractually agreed loading and unloadingtime are not maintained due to reasons beyond theFreight Forwarder’s scope of responsibility, the Principal mustpay the Freight Forwarder the agreed, otherwise commonlyaccepted, demurrage fees.
11.5 The aforementioned provisions apply accordingly, when theFreight Forwarder is obliged to load and unload the goods,and when the Principal is exclusively committed to preparethe goods for loading or to accept them after unloading.
12. Performance hindrances and force majeure
12.1 If the Freight Forwarder is unable to take over the goods,or unable to take them over on time, the Freight Forwardermust immediately notify and seek instruction from thePrincipal. Section 419 HGB applies accordingly. The Principalremains entitled to terminate the Freight Forwarding Contract,whereas the Freight Forwarder is not entitled to ask forcompensation according to section 415 (2) HGB.
12.2 Performance hindrances that do not fall within the scope ofresponsibility of either contracting party, free said parties oftheir performance duties for the duration of the hindranceand the extent of its impact.
Such performance hindrances are defined as force majeure,civil unrest, war or acts of terrorism, strikes and lock-outs,transport route blockades, and any other unforeseeable,unavoidable and serious events.In case of a performance hindrance, the contracting partiesare obliged to notify the other party immediately. Additionally,the Freight Forwarder is obliged to ask the Principal forinstructions.
13. Delivery
13.1 If, after arrival at the Place of Discharge, it becomes apparentthat the unloading cannot take place within the time ofunloading, the Freight Forwarder must immediately notifythe Principal and request for relevant instructions. Section419 HGB applies accordingly.
13.2 If the Freight Forwarder cannot adhere to the agreed Time ofPerformance or – in the absence of an agreement – to a reasonabletime for Delivery, the Freight Forwarder shall requestinstructions from the Principal or the Consignee.
13.3 In cases where the Consignee is absent at the designatedhome, business or shared location address and if the Consigneelives therein, the goods, always assuming there areno obvious doubts regarding the entitlement to receive thegoods of the person in question, may be delivered to:
13.3.1 an adult family member; a family employee; or an adult withpermanent residence at the designated home address,
13.3.2 an employee at the designated business location,
13.3.3 a manager or representative authorised to receive the goodsat the designated shared location.
13.4 In cases where the Freight Forwarder and Principal haveagreed on Delivery without the presentation to an actual person(for example, night, garage or assembly line deliveries),Delivery is deemed to have taken place on the actual physicaldeposit of the goods at the agreed location.
13.5 The Delivery can only take place under supervision of thePrincipal, Consignee or a third party authorised for reception.Clauses 13.3 and 13.4 ADSp remain unaffected.
14. Information and restitution duties of theFreight Forwarder
14.1 The Freight Forwarder has the duty to supply the Principalwith the required information and, upon request, with thestatus of the business as well as to demand accountabilityupon completion. However, the Freight Forwarder is onlyobliged to reveal costs, if the Freight Forwarder works onPrincipal’s account.
14.2 The Freight Forwarder has the duty to give anything to thePrincipal what he has received by carrying out and managingthe business.
15. Warehousing
15.1 The Principal has the duty to pack and mark the goods, if required,and to make available all documents and informationto the Freight Forwarder for an appropriate storage.
15.2 The Freight Forwarder decides in its sole discretion if warehousingtakes place in its own facilities or, if not otherwiseagreed, those of third parties. Whenever warehousing takeplace at third party warehouses, the Freight Forwarder mustsupply timely information regarding its name and locationto the Principal or, whenever a warehouse warrant has beenissued, to make a note of the information on the same.
15.3 The Freight Forwarder takes care for the duly maintenanceand care of the warehouse and storage space, the driveson the premises and for securing the goods, in particulartheft protection. Additional security measures, for examplemeasures exceeding the statutory fire protection laws, mustbe explicitly agreed.
15.4 Unless otherwise agreed:
15.4.1 takeover of the goods for warehousing begins with theunloading of the goods from the Vehicle by the Freight Forwarderand ends with the completion of the Delivery by theFreight Forwarder.
15.4.2 inventory management is via the Freight Forwarder’s inventoryaccounting,
15.4.3 there is one physical inventory inspection per year. On instructionof the Principal, the Freight Forwarder shall conductfurther physical inventories against compensation.
15.5 With taking over the goods and if appropriate examinationmeans are available, the Freight Forwarder is obliged toconduct a receiving inspection on types, quantities, marks,numbering, quantities of Packages as well as outer visibledamages according to section 438 HGB.
15.6 The Freight Forwarder shall conduct regular inspections withappropriate personnel for securing the goods.
15.7 In case of stock shortfall and imminent changes at the goods,the Freight Forwarder shall immediately inform the Principaland ask for instructions. Section 471 (2) HGB remains unaffected.
15.8 Additional service and information obligations require anexplicit agreement.
16. Remuneration
16.1 The services according to the Freight Forwarding Contract arecompensated with the agreed remuneration, if this remunerationincludes the costs for transportation and warehousing.Supplemental claims for costs occurred during regular transportationor warehousing and which were not foreseeable
at the time of the offer, cannot be claimed separately, unlessotherwise agreed. Calculation errors are at the expense ofthe calculator. sections 412, 418, 419, 491, 492, 588 until 595HGB and comparable provisions of international conventionsremain unaffected.
17. Compensation claims and right of recourse
17.1 The Freight Forwarder is, if not caused by him, entitled to askfor refund of expenses properly incurred, in particular thoserelating to average contributions, detention or demurragecharges, including additional packaging for protecting thegoods.
17.2 If the Principal instructs the Freight Forwarder to receivegoods and if, on reception of the goods by the FreightForwarder, freight, cash on delivery, customs duties, taxes,or other expenses and charges are demanded, the FreightForwarder is entitled – but not obliged – to pay these costsaccording to the circumstances he has properly assessed, andto claim reimbursement from the Principal, unless otherwise
agreed.
17.3 On request, the Principal must immediately indemnify theFreight Forwarder for expenditures, such as freight, averagecontributions, customs duties, taxes and other feesdemanded from the Freight Forwarder, in particular actingas a person authorised to dispose or as possessor of goodsbelonging to third parties, unless the Freight Forwarder is notresponsible for their accrual.
18. Invoices, foreign currencies
18.1 Remuneration claims of the Freight Forwarder require thereception of an invoice or payment schedule in accordance tostatutory requirements. If not otherwise agreed, the maturityis not dependent on presenting a delivery receipt in case ofan uncontested Delivery.
18.2 Regarding foreign Principals or Consignees, the Freight Forwarderis entitled to ask whether to receive payment in therelevant foreign currency or in Euro (EUR).
18.3 If the Freight Forwarder owes foreign currency or hasadvanced foreign currency amounts, the Freight Forwarderis entitled to ask for payment in either the relevant foreigncurrency or in EUR (EUR). In case of Euro (EUR), currencyconversion is made according to the official exchange rate onthe day of payment, which shall be evidenced by the FreightForwarder.
18.4 Payment according to a credit memo procedure must beexpressly agreed. In case of doubt, all credit memos are tobe issued immediately, upon completion of services. Clause18.1 1st sentence ADSp is not applicable for credit memoprocedures.
19. Set-off, Retention
In the face of claims arising from the freight forwardingcontract and associated non-contractual claims, set-off orretention is only permitted when the claim is uncontested,ready for decision or legally established.
20. Lien and retention rights
20.1 The Freight Forwarder is entitled to secure its demands arisingfrom freight forwarding services according to the legallypermitted regulations regarding lien and retention rights.
20.2 Lien rights can be exercised according to the legally establishedprovisions, providing:
20.2.1 the threat and the required notifications about the lienexercise and the sale of the pledged items by the carrier shallbe forwarded to the Consignee,
20.2.2 the time limit of one month as specified in section 1234 BGBis superseded by a time limit of two weeks.
20.3 The Principal is entitled to prohibit the exercise of the lienby granting an equivalent security for its claims, such as adirectly enforceable bank guarantee.
21. Insurance of goods
21.1 The Freight Forwarder arranges the insurance of the goods(c. f. goods in transit or warehousing insurance) with aninsurer of its choice, when the Principal assigns the FreightForwarder to do so prior to handing over the goods.
21.2 The Freight Forwarder shall arrange insurance for the goods,if this is in the interests of the Principal. The Freight Forwardercan assume that insurance is in the interests of thePrincipal, in particular when:
21.2.1 the Freight Forwarder has arranged insurance for a previousFreight Forwarding Contract for the same Principal in thecourse of an ongoing business relationship,
21.2.2 the Principal has declared a value of the goods for the purposeof insurance.
21.3 The assumption that insurance is in the interest of thePrincipal according to clause 21.2 ADSp can be discounted, inparticular when:
21.3.1 the Principal has prohibited the purchase,
21.3.2 the Principal is a Freight Forwarder, carrier or warehousekeeper.
21.4 In case of purchasing insurance cover, the Freight Forwardershall observe instructions of the Principal, in particular themount insured and risks to be covered. In the absence ofsuch an instruction, the Freight Forwarder must assess thetype and scope of insurance in its sole discretion and purchaseinsurance cover at the usual market conditions.
21.5 If, due to the nature of the goods to be insured, or foranother reason, the Freight Forwarder is unable to purchaseinsurance cover, the Freight Forwarder will notify the Principalimmediately.
21.6 If the Freight Forwarder purchases an insurance after conclusionof the Freight Forwarding Contract and upon instructionof the Principal or recovers a claim or acts otherwise on behalfof the Principal regarding carrying out insurance claimsor averages, the Freight Forwarder is entitled to a reasonable
remuneration according to local standards, otherwise, anappropriate remuneration, in addition to the compensationof its expenses, even in the absence of a prior agreement.
22. Liability of the Freight Forwarder, Subrogationof claims of reimbursement
22.1 The Freight Forwarder is liable for damages according to thestatutory provisions. However, the following provisions shallapply, in as much as they do not contradict mandatory regulations,in particular the law of pre-formulated terms andconditions.
22.2 In all cases, where the Freight Forwarder is fault-based liablefor losses or damages to the goods (“Gьterschaden”) accordingto clause 23.3 and 24, the Freight Forwarder must onlypay the value and reimburse the costs according to sections429, 430, 432 HGB instead of damage compensation.
22.3 In case of inventory divergences, the Freight Forwarder isentitled to balance the inventory with positive stock balancedifferences and stock shortfall of the same Principal for valueevaluation in cases as set out in clause 24 ADSp.
22.5 If the Freight Forwarder has claims, for which the FreightForwarder is not liable for, against a third party in case ofdamages, or in cases when the Freight Forwarder has claimsexceeding the sum for which the Freight Forwarder is liable,the Freight Forwarder must subrogate such claims to thePrincipal upon request, unless the Freight Forwarder has aseparate agreement to pursue claims on behalf and at the
expense of the Principal. sections 437, 509 HGB remain unaffected.
23. Liability limitations
23.1 Except in case of damages during carriage of goods by seaor ordered warehousing, the Freight Forwarder’s liability fordamages to goods is limited according to Section 431 (1), (2)and (4) HGB, to:
23.1.1 8,33 Special Drawing Rights (SDR) for every kg, whenever theFreight Forwarder is:
- a carrier, as defined by Section 407 HGB,
- acting as principal (“Spediteur im Selbsteintritt”), fixedcosts freight forwarder (Fixkostenspediteur) or consolidator(“Sammelladungsspediteur”), according to sections 458 to460 HGB or
- care, custody and control Freight Forwarder (“Obhutsspediteur”)according to Section 461 (1) HGB.
23.1.2 2 instead of 8.33 SDR for every kg, whenever the Principalhas agreed to a Freight Forwarding Contract which is subjectto a variety of transport means and includes carriage ofgoods by sea and an unknown damage place. In case of a known damage place, the liability according tosection 452a HGB is subject to the liability exclusion andliability limitation of the ADSp.
23.1.3 Whenever Freight Forwarder’s liability according to clause23.1.1 ADSp exceeds an amount of EUR 1,25 millionper Damage Case, this liability is furthermore limited toEUR 1,25 million per Damage Case, or to 2 SDR for everykg, whichever amount is higher.
23.2 The liability of the Freight Forwarder for damages to thegoods in its custody for Freight Forwarding Contracts whichare subject to carriage of goods by sea and cross-bordertransportation is limited to the maximum statutory liabilityamount. Clause 25 ADSp remains unaffected.
23.3 For all cases out of scope of clauses 23.1 and 23.2, such assection 461 (2) HGB, 280 ff BGB, the liability of the FreightForwarder for damages to goods is limited according toSection 431 (1), (2) und (4) HGB to a maximum of:
23.3.1 2 SDR per kg for Freight Forwarding Contracts relating tocarriage of goods by sea or a transportation by a variety oftransport means, but including carriage of goods by sea,
23.3.2 8.33 SDR per kg for all other Freight Forwarding Contracts.
23.3.3 Furthermore, the Freight Forwarder’s liability is limited tothe maximum amount of EUR 1,25 million for each case ofdamage.
23.4 The liability of the Freight Forwarder for all other damagesthan damages to the goods with the exception of damagesduring ordered warehousing or damages to personal injuryor goods of third parties is limited to three times the amountthat would be payable for the loss of goods according toclauses 23.3.1 or 23.3.2 ADSp. Furthermore, the FreightForwarder’s liability is limited for each case of damage to themaximum amount of 125,000 Euros.
23.4.1 Sections 413 (2), 418 (6), 422 (3), 431 (3), 433, 445 (3), 446(2), 487 (2), 491 (5), 520 (2), 521 (4), 523 HGB as well as anyrelevant liability provisions in international conventions shallremain unaffected.
23.4.2 Clause 23.4 ADSp is not applicable on statutory provisions,such as Article 25 Montreal Convention (MC), Article 5 Rиglesuniformes concernant le Contrat de transport internationalferroviaire des marchandises (CIM) or Article 20 Conventionde Budapest relative au contract de transport de marchandisesen navigation intйrieure (CMNI), which extend FreightForwarder’s liability or permit to extend.
23.5 If Freight Forwarder’s liability according to Articles 23.1, 23.3and 23.4 ADSp exceeds the amount of EUR 2,5 million perDamage Event, then Freight Forwarder’s liability is, irrespectiveof how many claims arise from a single Damage Event,further limited to a maximum amount of EUR 2,5 millionper Damage Event or to 2 SDR per kg for lost or damagedgoods, whichever amount is the higher. When there is more
than one claimant, the Freight Forwarder’s liability shall beproportionate to individual claims.
24. Liability limitations for ordered warehousing, inventories and declaration of value
24.1 In the case of ordered warehousing, the liability of theFreight Forwarder for damages to goods is limited to:
24.1.1 8.33 SDR for every kg corresponding to 431 (1), (2) and (4)HGB,
24.1.2 a maximum of EUR 35,000 per Damage Case.
24.1.3 70,000 Euros per year, in cases where the damage claimedby the Principal bases, contrary to clause 24.1.2 ADSp, on adifference between calculated stock and actual stock of theinventory, irrespective of the amount and type of inventorytaking and the amount of Damage Cases causing the differencein inventory.
24.2 Upon payment of an agreed supplement and prior to warehousingof goods, the Principal can specify a value in textform for an increased liability that differs from the maximumamounts stipulated in clause 24.1. In this case, the specifiedvalue replaces the relevant maximum amount.
24.3 In case of warehousing upon instruction, the Freight Forwarder’sliability for other damages, excluding damages topersonal injury or goods of third parties, is limited to EUR35,000 per case of damage.
24.4 In case of warehousing upon instruction, but excluding personalinjury or damages to goods of third parties, the FreightForwarder’s liability is always limited to EUR 2,5 million perDamage Event, irrespective of how many claims arise from asingle Damage Event. When there is more than one claimant,the Freight Forwarder’s liability shall be proportionate toindividual claims. Clause 24.2 ADSp remains unaffected.
25. Exclusion of liability for carriage of goods bysea and inland waterway transportation
25.1 In accordance with section 512 (2) No. 1 HGB, it is agreedthat:
The Freight Forwarder in its position as carrier is not responsiblefor any fault or neglect on the part of its servants or ofthe ship’s company, insofar as the corresponding damage wascaused in the course of steering or otherwise operating theship, or was caused by fire or explosion on board the ship and
the measures taken were not predominantly for the benefitof the cargo.
25.2 According to Article 25 (2) CMNI it is agreed that the FreightForwarder in its position as carrier or actual carrier is notliable for damages:
25.2.1 caused by an act or omission by the master of the vessel, thepilot or any other person in the service of the vessel, pusheror tower during navigation or in the formation or dissolutionof a pushed or towed convoy, provided that the FreightForwarder complied with the obligations set out for the crewin Article 3 (3) CMNI, unless the act or omission results froman intention to cause damage or from reckless conduct with
the knowledge that such damage would probably result,
25.2.2 caused by fire or an explosion on board the vessel, where it isnot possible to prove that the fire or explosion resulted froma fault of the Freight Forwarder or the actual carrier or theirservants or agents or a defect of the vessel,
25.2.3 the defects existing prior to the voyage of his vessel or of arented or chartered vessel if he can prove that such defectscould not have been detected prior to the start of the voyagedespite due diligence.
25.3 Clause 22.4 ADSp remains unaffected.
26. Non-contractual liability
In accordance with sections 434, 436 HGB, the abovementioned liability exclusions and limitations also apply tonon-contractual claims. Clause 23.4.1 ADSp applies accordingly.
27. Qualified fault
27.1 Liability exclusions and limitations listed in clauses 22.2, 22.3,23.3 and 23.4 in conjunction with 23.5, 24 as well as 26 ADSpdo not apply when the damage has been caused by:
27.1.1 intent or gross negligence of the Freight Forwarder or vicariousagents or
27.1.2 infringement of Material Contractual Obligations, wherebysuch claims are limited to predictable and typical damages.
27.2 Divergent from clause 27.1.2 ADSp, the liability limitations ofclause 24.1 and 24.2 ADSp only apply in case of gross negligentor intentional infringements of material contractualduties.
27.3 Sections 435, 507 HGB remains applicable within their scopeof application.
27.3 Clause 27.1 ADSp is not applicable on statutory provisions,such as Article 25 MC, Article 36 CIM or Article 20, 21 CMNI,which extend Freight Forwarder’s liability, allows extending orexpanding the imputation of fault of servants or third parties.
28. Liability insurance of the Freight Forwarder
28.1 The Freight Forwarder is obliged to purchase and maintainliability insurance at the usual market conditions with aninsurer of his choice that, as a minimum, covers the ordinaryliability amounts of its freight forwarding liability accordingto ADSp and statutory provisions. The agreement of maximuminsurance amounts per Damage Case, Damage Eventand year is permitted as well as the agreement of reasonable
deductibles for the Freight Forwarder.
28.2 Upon request, the Freight Forwarder is obliged to provideevidence of the liability insurance and its validity by presentationof an insurance confirmation within a reasonableTime Frame. In absence of such a presentation, the Principalis entitled to terminate the Freight Forwarding Contractextraordinarily.
28.3 The Freight Forwarder is only entitled to rely on the liabilitylimitations of the ADSp, when the Freight Forwarder providesan appropriate insurance cover at the time of order.
29. Liability of the Principal
29.1 The liability of the Principal pursuant to sections 414, 455,468, and 488 HGB is limited to EUR 200,000 per DamageEvent.
29.2 The aforementioned liability limitation does not apply in caseof personal injuries, such as injury of life, body and health, ifthe damage was caused by gross negligence or wilful intentof the Principal or its vicarious agents, or infringement ofMaterial Contractual Obligations, whereas the latter is limitedto predictable and typical damages.
30. Applicable law , place of fulfilment, place ofjurisdiction
30.1 The legal relationship between the Freight Forwarder andPrincipal is governed by German law.
30.2 The place of fulfilment for all involved parties is the locationof the Freight Forwarder’s branch office dealing with theorder or the enquiry.
30.3 The place of jurisdiction for all disputes and all involved partiesarising from the Freight Forwarding Contract, an enquiryor in relation to it, is the location of the Principal or FreightForwarder’s branch office dealing with the order or enquiry,as far as all these parties are merchants. The aforementioned
place of jurisdiction shall be deemed as an additional placeof jurisdiction pursuant to Article 31 CMR and Article 46 § 1CIM, but not in case of Article 39 CMR, Article 33 MC, Article28 Convention for the Unification of certain rules relating tointernational carriage by air (WC).
31. Confidentiality
31.1 Contractual parties are obliged to maintain confidentialityregarding all unpublished information received during theexecution of the freight forwarding contract. This informationcan only be used for the exclusive purpose of contractfulfilment. The parties shall commit other legal persons withan equivalent confidentiality obligation, if these legal personsare deployed for contract fulfilment.
32. Compliance
32.1 The Freight Forwarder shall comply with minimum wage provisionsand minimum conditions for workplaces and confirmsthe compliance in text form upon request of the Principal.The Freight Forwarder indemnifies the Principal for its liabilityfor minimum wages, if the Freight Forwarder, its subcontractor
or hirer during the course of fulfilment of the FreightForwarding Contract, does not pay the minimum wages andthe Principal is demanded to pay.
32.2 The Freight Forwarder shall ensure in case of transportationservices, that its executing subcontractor
32.2.2 deploys driving personnel, which comply with the requirementsof section 7 (1) Gьterkraftverkehrsgesetz (GьKG), ifapplicable,
32.2.3 upon request provides all documents, which must be carriedduring transportation according to statutory provisions,when the Principal or third parties must comply with statutorycontrolling obligations,
32.3 In case of transportation, the Freight Forwarder or its executingsubcontractor is obliged to organise the activities ofits driving personnel according to the compulsory working,driving and recreation times. During the driving of Vehicles,alcohol and drugs are generally prohibited.
32.4 Both contracting parties commit to carrying out theircontractual duties and to act according to the legal regulationscovering their business and to support and obey theprinciples of the United Nations Global Compact (UNGC), theUnited Nations Declaration of Human Rights, and the Declarationof the International Labour Organization regardingthe 1998 Declaration on Fundamental Principles and Rightsat Work, in accordance with national laws and customs. Inparticular, both parties will commit to:
32.4.1 no child or forced labour,
32.4.2 comply with the relevant national laws and regulationsregarding working hours, wages, salaries and to comply withany other obligations for employers,
32.4.3 to comply with the current regulations on health and safetyat work, and to provide a safe and healthy workplace to ensurethe health of employees and to avoid accidents, injuriesand work-related illness,
32.4.4 prohibit all discrimination based on race, religion, disability,age, sexual orientation or sex,
32.4.5 comply with international standards on corruption, such asthose published in UNGC and to adhere to local anti-corruptionand bribery laws,
32.4.6 adhere to all current environmental protection laws andregulations,
32.4.7 engage its business partners and subcontractors according tothe aforementioned principles.
SOURCE: ADSp 2017