In my legal blog on www.logistiek.nl I paid attention last month to the difference between a transport agreement and a forwarding agreement. Given the number of ‘views’, I think it would be useful to go into this distinction in more detail, which can be of essential importance to the logistics entrepreneur if cargo damage is claimed.

Forwarding agreement

A forwarding agreement is an agreement between the forwarder and the client, whereby the forwarder undertakes to conclude a transport agreement on behalf of his client. It involves having the goods transported.

The forwarder is not liable for cargo damage because it is not his job to transport. It is his task to conclude a transport agreement with a third party in his own name or in the name of his client.

The forwarder may contractually limit his liability in his legal relationship with the client. In practice, this is often done by declaring the FENEX conditions applicable to the forwarding agreement. The FENEX conditions stipulate, among other things, that the forwarder is only liable if the damage is caused by the fault or negligence of the forwarder or his subordinates.

Transport agreement

A transport agreement is an agreement in which the carrier undertakes to transport goods to his client. Please note that there is no obligation to transport the goods himself.

The main rule in transport law is that the carrier is liable for the delivery of the goods received without delay in the condition in which he received them

A carrier may also outsource the transport to a third party, the actual carrier. In that case, there is a ‘paper’ carrier, whose practical implementation does not differ from the forwarder. In both cases, they have outsourced the transport of goods.

The only difference is that a forwarder will have made it clear to his client before or during the conclusion of the agreement that he will not transport the goods himself and that he will conclude a transport agreement with a third party.

A carrier is bound by (semi) mandatory law in his legal relationship with his client. This means that he cannot exclude or limit his liability by referring to general (transport) conditions.

Procedures

There are therefore relatively many proceedings on the question of whether a logistics service provider in the transport chain should be qualified as a forwarder or as a carrier. If a logistics operator succeeds in proving that he acted as a forwarder, the claim for damages will be rejected. If the logistics operator fails to do so, he will be considered a carrier and will in principle be liable for the resulting cargo damage.

In order to prevent this, the forwarder must make it clear to his client in writing before concluding the agreement that he will conclude a forwarding agreement for his client, whereby he will have the goods transported.

Burden of proof

The question of whether a transport agreement or a forwarding agreement has been concluded is determined on the basis of the so-called ‘Haviltex criterion’. This concerns the statements of both parties, the conduct of both parties and the expectations that they may have had of each other. The circumstances of the case will be decisive.

In a recent ruling, the Court of Appeal in ‘s-Hertogenbosch, in addition to repeating the Haviltex criterion, ruled that a contractor who wishes to act as a forwarder in the context of a transport order must clearly present himself as such when entering into the agreement, failing which it must in principle be assumed that a transport agreement has been concluded*.

This ruling is in line with existing case law that in the event of doubt it is up to the party claiming that there is a forwarding agreement to prove this. If this is not proven, the agreement is deemed to be a transport agreement.

Advice

For logistics service providers who are active as both a forwarder and a carrier, it is advisable to provide clarity per transport order, by making it clear on quotes and in correspondence with the client that it concerns a forwarding order, to which the FENEX conditions apply.

* Court of Appeal ‘s-Hertogenbosch d.d. 25 October 2016, ECLI:NL:GSHE:2016:4752

Mr. Otto Lenselink

December 2017

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