What are the 7 rights of logistics
Freight and storage law: legal bases, liability rules, important insurances
Forwarding and transport law regulates freight traffic and is fundamentally different from the legal rules for passenger transport. The rules cover the transport of goods by road, air, rail and water. The transport law and the associated storage law are considerable risk potential and thus as well significant liability risks immanent.
In the field of transport law, a distinction must be made between different types of contract.
What does the freight contract regulate?
According to §§ 407ff HGB, the freight contract is designed as a special form of the contract for work and services. Contractual partner are the sender and the Carrier. The content of the contract is the obligation of the carrier to deliver the goods handed over by the sender or forwarder to the recipient, who is not himself a contractual partner. The conclusion of a freight contract is regularly proven by the Waybillf or a simple delivery note, which is sufficient in national transport.
CRM waybill in international freight transport
In international freight transport, it is advisable to carry an international CMR consignment note with you, as it is missing in some countries heavy fines is occupied. In Germany - unlike in other countries - the customary stamp on the consignment note is not sufficient: in accordance with Section 408, Paragraph 2, Clause 2 of the German Commercial Code, a replicated signature is required as the stamp.
According to Art. 9 Paragraph 1 CMR, the consignment note is Document of evidence for the information contained therein (type of transported goods, number and weight of the freight items, special instructions from the client). The CMR agreement also contains special liability rules, for example in the event of damage or loss of the freight or if the delivery time is exceeded.
Different international agreements apply to the individual types of transport, such as COTIV / CIM for international rail transport, CMNI for international inland shipping, MÜ / WA for international air transport.
Note: When transporting goods that violate third-party property rights or patent rights, sanctions are also possible against the carrier (BGH, judgment of May 16, 2017, X ZR 120/15).
Liability peculiarities that apply to the carrier
According to §§ 425 ff HGB, the carrier is liable for damage caused by damage to or loss of goods during transport no fault.
According to § 431 HGB, however, liability is limited to 8.33 SDR / kg. The SDR is an artificial currency that was introduced by the IMF in 1969 and is kept in IMF accounts.
Important: For courts, the decision on the existence of damage is not based on strict but free evidence (LG Düsseldorf, judgment of March 28, 2017, 35 O 59/16).
What does the forwarding contract regulate?
The forwarding contract (§§ 453ff HGB) is essentially a Agency agreementwith which the freight forwarder undertakes to organize the dispatch of goods. Legally, the freight forwarder (shipper) concludes contracts with a transport company on behalf of the sender in his own name.
Contractual rights and obligations in the freight forwarding contract
In the interests of the client, the freight forwarder is obliged to ensure the fastest, most economical and reliable transport possible. The freight forwarder can also take care of the transport himself. He receives one for his work commission and has Right to reimbursement of freight costs. He is the sender information and accountable. According to the General German Forwarding Conditions (ADSp), he takes out insurance for possible liability cases.
What does the storage contract regulate
With the storage contract, the warehouse keeper undertakes to properly store the goods for the depositor in accordance with Section 467 of the German Commercial Code (HGB). The Depositor Although the owner of the stored goods remains, the warehouse keeper is the immediate owner and the corresponding owner during the storage period Due diligence and care. Depending on the agreement, this may include appropriate packaging of the stored goods, a certain storage temperature and other safety measures. A warehouse receipt can be issued as proof.
What does the logistics contract regulate?
The logistics contract is the most complicated of the contract types. It is not regulated in the law, regularly contains elements of different contract types and is therefore a mixed type contract (OLG Düsseldorf, judgment of 11.01.2017, I-18 U 164/15).
Often, in the logistics contract, transport and storage elements are combined, and more logistic services how
- Quality control,
- Goods inspection and the like agreed.
Accordingly, depending on the design, the rules of the storage contract, § 467 ff HGB, the freight contract, 407 ff HGB, the rules of the service contract according to § 611 ff BGB, the work contract according to § 631 ff BGB and other types of contract apply. Logistics contracts are often concluded on the basis of the logistics terms and conditions recommended by the Bremerhaven University of Applied Sciences and the German freight forwarder and logistics association.
Logistics contract checklist
Financially strong clients often accept them Logistics terms and conditions Not. In this case, these terms and conditions can serve as a checklist for the points to be observed when concluding the contract, including in particular:
- A exact description of services (Specification book);
- a clear remuneration regulation, if possible with an adjustment clause in the event of changed framework conditions;
- a Compensation protection, for example through a lien or a right of retention;
- a clear one Limitation of Liability (in accordance with paragraphs 22 ff ADSp, paragraphs 14, 15 logistics terms and conditions) for slight or medium negligence, foreseeable damage and the amount.
Important insurance in logistics
It is important for all types of transport companies, carriers, forwarders, warehouse keepers and logisticians to have insurance for all typical damage occurring in connection with transport or storage. These requirements are best met by a Transport liability insurance fair. As a subcategory of liability insurance, this covers, among other things, damage caused by the misconduct of the commissioned persons. A legal obligation to take out such insurance in the national area only applies to the Truck carrier for transports within Germany with a permissible total weight of over 3.5 t. One is required there Minimum coverage of 600,000 euros per claim. Taking out insurance is also a prerequisite for obtaining the EU transport license. If the ADSp is agreed as the contractual basis, it is mandatory to take out insurance within the liability limits of the ADSp.
The simple transport or storage insurance is a pure property insurance in which only the respective transport or storage goods are insured as such. In the event of damage, the policyholder must present and prove the insured event (BGH decision of 11.01.2017, IV ZR 74/14).
More news on the topic:
New version of the Incoterms as of 01/01/2020
Terms and Conditions - Inadmissible limitation of a transport insurance
Avoid sources of error when concluding a contract
Background: liability of the carrier
According to § 425 HGB, the carrier is liable for Loss of and damage to the goods in the time from acceptance to delivery as well as for damage caused by exceeding the delivery period.
The carrier's liability is custody, whereby it can be left open whether this is fault-independent or is subject to particularly strict requirements of care. According to §§ 426, 427 HGB, the carrier is released from his liability if the loss, damage or delay in delivery is due to circumstances that he also do not avoid with the greatest care and the consequences of which he could not avert, or if certain reasons for exclusion of liability defined in more detail in the law (cf. § 427 HGB) intervene.
The type and amount of the compensation to be paid by the carrier are based on §§ 429 ff. HGB. According to Section 429 (1) of the German Commercial Code (HGB), in the event of total or partial loss, the value of the goods must be replaced at the place and time of the takeover. In the event of damage, the difference between the damaged and undamaged condition must be reimbursed in accordance with Section 429 (2) HGB. It is characteristic of the carrier's liability that he only Has to pay compensation, but not compensation. This means that the carrier is usually not responsible for consequential damage to goods (BGH, judgment of October 5, 2006, I ZR 240/03) and pure financial losses with the exception of damage caused by delay. The right to in rem restitution (§ 249 sentence 1 BGB), payment of the necessary repair costs (§ 249 sentence 2 BGB) or lost profit (§ 252 BGB) is excluded.
The amount of the replacement to be paid is limited; for damage to goods with 8.33 special drawing rights for each kilogram of the gross weight of the shipment and for damage caused by delay with three times the freight (remuneration) as the maximum liability amount.
From: German lawyer Office Premium
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