Forwarding Contract
1. Conception and definition
By way of a forwarding contract, the freight forwarder commits himself, in exchange for payment of the agreed remuneration, to organizing the transport of goods; in the wording of § 453 of the German Commercial Code or Art 439 of the Swiss Code of Obligations (OR), he is obliged to ‘arrange for the dispatch of the goods’. As with carriers, the purpose of freight forwarders is the transport of goods. Yet, contrary to a contract of carriage (carriage, contract of), a freight forwarder does not promise to perform the transport himself, he is only obliged to choose performing carriers. The freight forwarder complies with his main obligation by concluding the required contracts with the carriers in each individual case to physically transport the respective goods to their destination. Taking care of the customer’s interest, it is the duty of the freight forwarder to select the means and the route of transport, as well as the performing carriers. Depending on the specific agreement, he may also have to perform ancillary duties such as, among others, picking up the goods and packing them, organizing and checking consignment notes, procuring insurance or clearing the goods through customs. In fulfilling his obligations towards the customer, the freight forwarder concludes the contracts of carriage required in his own name, but for the customer’s account. As a consequence, he becomes the contractual partner of the carrier and is labelled, in that capacity, a consignor, shipper or sender. In continental legal systems, there is no contractual relationship between the carrier and the customer who employs the freight forwarder. This is different from common law, which clearly distinguishes between the obligation of the freight forwarder as an agent, a person acting as a mere middle-man on behalf of his customer, as opposed to a freight forwarder who himself provides services as a principal.
It is difficult to precisely distinguish a forwarding contract from a contract of carriage (carriage, contract of); yet it is decisive that the freight forwarder organizes the transport of the goods, while the carrier physically transports the goods. By virtue of the contract of carriage, the carrier is obliged to carry the goods successfully to their destination and there deliver them to the consignee. According to a forwarding contract, the obligation to physically transport the goods is not the freight forwarder’s duty; he is, however, permitted to wholly or partly include himself in the contract of transport (Selbsteintritt), thereby assuming the rights and obligations of a carrier. The problems with the definition arise from the fact that the typical pattern of a forwarding contract does not correspond to the actual activities usually performed by freight forwarders in everyday business. The borderlines between these branches of transport-related business are indistinct; frequently, larger freight forwarding firms organize as well as perform transport, and a strict division of the terms forwarder and carrier is also alien to everyday language in many countries. Drawing a clear distinction between the activities of carriers and freight forwarders is generally impossible.
The typical activity arising from forwarding contracts is the organization of the course to be taken by the goods on the customer’s behalf; it is therefore an activity essential for the national and international trade in goods. Unsurprisingly, the field is constantly evolving; on the one hand freight forwarders are continually expanding their field of operation, and on the other, more and more shippers’ duties are being outsourced. The term logistics, which comprises ‘the process of designing and managing the supply chain in the wider sense’ (point 1.10 UN/ECE terminology), including management of materials at the plant, packaging and final distribution to the point of consumption, is nowadays inseparable from the activities of freight forwarders. They increasingly understand themselves as providers of comprehensive logistics services. This is also taken into account, for example, in the German Freight Forwarders Conditions (ADSp) of 2003 (2.1) and in the FIATA rules in the extensive definition of freight forwarding services (2.1).
Due to the increasing volume of freight, these activities are continually gaining in importance. The rising volume of transport also means an increasing strain on already congested roads. An improved organization of transport chains, a better use of loading capacities to achieve full loads, a more efficient use of resources and an increased utilization of less-polluting, alternative transport modes can ease the problem of traffic congestion as well as minimize the harmful impact on the environment. All this requires the increased employment of the multimodal or intermodal transport processes which are organized by freight forwarders.
2. Tendencies in the development of law
It is typically difficult to distinguish between forwarding and carriage based on the contractual agreements concluded by the parties. A distinction takes on relevance chiefly in relation to the different liability rules. While the forwarder pledges to organize the transport, it is the carrier’s duty to successfully perform it. Consequently, the forwarder incurs no liability for the latter. He is liable only for his own or his employees’ culpable behaviour. Regarding the performing carriers engaged by him, he is typically only liable for culpability in the selection process (culpa in eligendo). In contrast to the carrier, he is not liable for damage or delay occurring from departure up to the delivery of goods to the consignee and does not accept the responsibility for carrying out the transport successfully. However, it needs to be borne in mind that a carrier is not required to perform the transport of the cargo himself with his employees or his own means of transport; instead, subcontractors are frequently employed. In this case the carrier is also a transport agent like the freight forwarder, but in contrast to the latter is responsible for the successful performance he promised to the sender. As the contractual agreements between shippers and freight forwarders (forwarding agents) or carriers hardly differ, a contract can be classified more or less only on the basis of the subjective willingness on the part of the shipper’s contracting partner to accept carrier responsibility. Nevertheless, those legal systems which assign liability for culpa in eligendo to the freight forwarder make him subject to freight rules in special cases. This happens when the freight forwarder performs the transport or parts of it himself (Selbsteintritt) and when transport law applies to other special types of freight forwarding, eg when the freight forwarder acts as a cargo consolidator (Sammelladungsspedition) or when he has offered a fixed price for the transport (Fixkostenspedition). In practice, it is not the standard type of contract, where the freight forwarder acts for the customer’s account (Geschäftsbesorgungsspedition), but the special types which are more common.
A rule that also makes freight forwarders responsible for the arrival of the goods at their point of destination according to the contract (eg in France Art L 132-4 Code de commerce, in Switzerland Art 439 Swiss Code of Obligations (OR)) avoids the problem of classification of contracts entailing different rules of liability. Yet, under closer scrutiny some differences in terms become evident. In French law, for example, the commissionaire de transport—unlike the transitaire—corresponds more to the carrier (Beförderer, Frachtführer) than to the freight forwarder (Spediteur) in German law as he must assure the successful performance of the transport.
As shown above, large swaths of the activities of freight forwarders are subject to transport law. Due to the trend to increasingly offer comprehensive solutions like door-to-door transport, which involves far more than just transport and its organization, the distinction between forwarding contracts and freight contracts is of diminishing importance for the customer. His expectations are focused on the fact that his contractor ensures the delivery of the goods to the consignee, in time and without any damage occurring, as well as the acceptance of continuous responsibility and liability in case of damage. These expectations on the part of the customer are mirrored by the expanding activities of freight forwarders as comprehensive logistics service providers. In consideration of their role in the planning and performance of multimodal transport, they are multimodal transport operators; due to their continuous responsibility for the entire course of transport they can be regarded as carriers, even if they often perform only part of the service.
3. International uniform law
Simultaneously with efforts to unify the international law for carriage of goods by road (carriage of goods by road), standardized rules began to emerge for the international forwarding contract. Finally, only a few years after the CMR took effect, UNIDROIT could present a draft for an international forwarding contract. Basically, the freight forwarder was to incur liability for culpa in eligendo with the exception of three instances where he was to be liable as a carrier, namely when he acts as a cargo consolidator, when he has offered a fixed price for the transport or when he has issued a particular document, an international forwarding note (titre de commission de transport international). However, this draft was deferred because of simultaneous efforts to standardize the international rules concerning transports performed by various other means. A draft elaborated to standardize the liability of operators of transport terminals, constituting a part of freight forwarding activities, was similarly unsuccessful.
Finally, in 1996 FIATA (Fédération Internationale des Transitaires et Assimilés, the international organization of freight forwarders) published Model Rules for Freight Forwarding Services which the parties to the contract could agree upon on a case-by-case basis. With regard to liability, one needs to distinguish between the forwarder’s acting as an agent or as a principal. The latter occurs when he performs the carriage himself with his own means of transport (performing carrier) or by issuance of a special document of transport, or if he shows in another relevant manner his intention to assume carrier liability (contracting carrier) (7.1). In these cases the freight forwarder is also liable as a principal for services other than carriage of goods (7.2). The importance of these Model Rules is, however, limited in commercial practice. In essence a forwarding contract still lacks a uniform international legal regime, and the diverse national provisions fail to reveal a coherent structure. Present attempts pursue a solution for multimodal transport and tend to make freight forwarders assume these rules of liability.
4. European perspectives
The declared aim of European transport policy is to ensure ‘sustainable mobility’. In the area of transport of goods the main objective is the advancement of intermodality (multimodal transport) with the purpose of establishing mode-independent door-to-door transport services (COM(97) 243 final). One reason for these efforts is the fact that, at a time of ever-increasing freight volume, some modes of transport are congested while the capacities of others are redundant and could be utilized, often without the need for investment in their infrastructure. Even today there are alternatives to congested roads which are environmentally more benign and which have sufficient capacity. The consideration of these criteria in the planning and organization of transport processes is crucial for the improved use of existing capacities and the avoidance of even more congestion. For this reason the framework of goods transport and logistics covering the planning, organization, management, control and execution of goods transport services needs to be improved for unimodal as well as multimodal aspects of transport. The essential target of an enduring optimal and sustainable use of resources in the European transport system is ‘co-modality’, which denotes ‘the efficient use of transport modes, operating on their own or in multimodal integration’ (COM (2006) 336 final, p 3). It is the responsibility of the so-called ‘freight integrators’ (COM(2001) 370 final, p 47 f) to cope with this task. It is their duty to select the most efficient mode of transport in a particular transport chain and to combine the specific strengths of the different modes and give preference to the means which are the cheapest, most reliable and least detrimental to the environment. The organization of full load transports in intermodal transport units necessitates appropriately trained specialists. Within these efforts freight forwarders play a crucial role as ‘architects of the transport chain’.
To date, private law measures have not been taken up in the European Union, and it is only in the area of multimodal transport that solutions are being considered.
Literature
Jobst Baumhöfener, Der Speditionsvertrag im grenzüberschreitenden Güterverkehr (1971); Johann Georg Helm, Speditionsrecht (2nd edn, 1986); Jürgen Basedow, Der Transportvertrag (1987); Jan Ramberg, ‘Unification of the Law of International Freight Forwarding’ [1998] Uniform Law Review 5; UN/ECE, Terminology on Combined Transport (2001); Jan Ramberg, The Law of Freight Forwarding (2002); David A Glass, Freight Forwarding and Multimodal Transport Contracts (2004); Peter Bydlinski, ‘§§ 453 ff HGB’ in Münchener Kommentar zum Handelsgesetzbuch, vol VII (2nd edn, 2009); Ingo Koller, Transportrecht (7th edn, 2010).
