JTJB Network Legal Update September 2017
The new German Freight Forwarding Conditions (ADSp 2017) & the liability of warehouses
A new Framework
The generally acknowledged framework for the freight forwarding industry has a new edition since the beginning of the year. Its core aims are to compensate the cargo interests sufficiently for loss and damage and to protect the warehouse holders on the other hand in limiting their liability towards the owner of the goods. In setting aside, the limits of liability (in general EUR 35.000,00 per loss), cargo interests have to overcome two different hurdles. The first hurdle is proving the breach of an essential duty of the contract (commonly known as cardinal´s duty). The second stage consists of delivering evidence that the warehouse holder has acted with recklessness and in the awareness that a damage will probably occur.
These two requirements together set a very high standard. The ADSp 2017 are still new, so for the time being no precedent is available on whether these rules will be held up when tested in court under the unfair contract terms regulations. Unlike in many other countries, contract terms between two parties of the commercial world will be examined on potential unfairness in court. All German ports and especially Hamburg provide a large number of warehouses where high quantities of foreign cargo are being stowed, thus also foreign interests are easily involved with these domestic regulations.
Another interesting set of rules are the Hamburg Warehousing conditions, exclusively used in the area of the Hamburg port, which hold some separate rules worthwhile another legal up-date