In the German transport world as from 1 January 2016 two conflicting and possibly competing sets of terms and conditions are in place, aiming to regulate the logistic business for domestic freight forwarders and their cargo clients.
A common renewal of the traditional ADSp (General German Freight Forwarding Conditions) could not be agreed upon between the freight forwarding associations and their counterparts representing the manufacturing industry. As a result since 18 September 2015 a set of rules, named DTLB (German Transport – and Warehousing Conditions), with a tendency to be in favor of cargo interests have been adopted and recommended, whereas the revised version of the ADSp is in place since the beginning of this year.
The rivalry between two regimes is a novum, but at a closer look, both rules have their pros and cons for both sides of the transport industry. Full style copies of both regimes are available for example on the web-site of the German Transport Law Association.
When the DTLB were adopted, concerns were raised, that they would contain surprising clauses in disadvantage of freight forwarders, rendering parts of the rules void. Similar doubts came up during the preparation of the new ADSp. On the other hand, when terms and conditions receive so much public interest, with comments from experts throughout the industry, one might wonder, whether anything in these conditions can come at a surprise to any party at all.
Also foreign cargo interest and freight forwarders can easily come across both sets of the rules. As long as compulsory international conventions will not prevail, both regimes can become applicable, if parties have agreed on them. The DTLB as well as the ADSp refer to German Law and jurisdiction of German Courts.
As opposed to other jurisdictions, under German Law no battle of forms with a “last shot rule” applies, but contradicting terms and conditions will cancel out each other and gaps in the agreement will be filled in again by the statute regulations found in the German Commercial Law Code (HGB).
A prime example for the above and important reference to the reformed German Maritime Law is made within the DTLB according to which only by individual agreement error in navigation can be excluded (DTLB No 7.1.3). The ADSp 2016, naturally, provide an exclusion for liability based on error in navigation during sea carriage (No 25. 1, and for inland water carriage in No 25.2), which is in principle allowed to be introduced by general terms and conditions under German Law according to § 512 Section 2 No 1 HGB. This contradiction again cancels out both clauses, resulting to falling back to the standard legal position of the new Maritime Law, namely the liability of the carrier and his servants for errors in navigation. This position is backed by the defense clause in No 10 DTLB.
The DTLB further provide stricter rules in regard of on-time delivery of the forwarders, insurance and EDI-platforms. A presumption, that the forwarder undertook to load and discharge the cargo, when he is in fact doing so, appears only appropriate to cargo interests (No 3.3.4 DTLB). The argument, in case of damage during the loading / un-loading process, that the forwarder, mostly the driver, was only acting in assistance of the sender or consignee and can therefore not be held liable, appeared always awkward and unjust.
The renewed ADSp 2016, which are more than a new edition, but contain some new regulations alltogether and also abolished an anachronism like the EUR 5,00 per KG limitation. As bold printing of lower limitation limits is not longer required according to the reformed § 449 HGB, the limits of 2 SDR per KG for sea or combined sea transports are still applicable in fine printing (No 23. 1.2 ADSp).
Interpretation of particular clauses, acceptance in the market, comments of various experts and future court decisions will form the two regimes over time into its final shape and applicability.
For long term partnerships negotiation of individual clauses will always be the safest and fairest road for both sides. In principle all parties can only be invited, despite the fast pace of a business where time is often of the essence, to take a closer look to any terms they agree upon, at the time of concluding a contract or by latest when any kind of damage or loss occurs.
In case you come across one of the quoted regimes – on a occasion of a transport claim-or any other set of terms and conditions you are not entirely familiar with, please contact us for further assistance.