FORWARDERLAW CONFERENCE IN ANTWERP OCTOBER 2016

Transcription

1 FORWARDERLAW CONFERENCE IN ANTWERP OCTOBER 2016 Freight Forwarders An update from the Nordic countries by/ Henrik Thal Jantzen of the law firm Kromann Reumert, Copenhagen SUNDKROGSGADE 5, DK-2100 COPENHAGEN Ø CVR. NO.: DK

2 REGULATION OF FREIGHT FORWARDING SERVICES Basically no mandatory regulation in relation to services provided by a freight forwarder, including Stevedoring and port handling services Domestic road carriage (except Norway) Logistic provider Storage, warehousing Various advisory services PAGE 2

3 REGULATION OF FREIGHT FORWARDING CARRIAGE SERVICES If the freight forwarder acts as contractual carrier the mandatory regulations apply (CMR, Hague Visby, Montreal, Cotif) If the freight forwarder acts as intermediary only no mandatory regulations apply (responsibility is limited to negligence in connection with appointment of a bona fida contractual party) No mandatory regulations for multimodal carriage PAGE 3

4 NSAB - BACKGROUND Standard terms negotiated between the Nordic associations of freight forwarders and shippers organisations for each of the Nordic countries (Denmark, Norway, Sweden and Finland) Considered as an agreed document First version from 1913 amended six times Latest version NSAB 2000 has now been revised, following negotiations for the last three years Revised version NSAB 2015 was entered into on 1 January 2016 PAGE 4

5 FREIGHT FORWARDER CONTRACTUAL PARTY OR INTERMEDIARY Freight forwarder s legal status before 2015 Substantially different legal position whether being contractual carrier or intermediary Freight forwarder often (on doubtful legal basis) claims being intermediary only when faced with a cargo claim This creates uncertainties in the market PAGE 5

6 FREIGHT FORWARDER CONTRACTUAL CARRIER OR INTERMEDIARY Freight forwarder s legal status NSAB 2015 New provision (NSAB 2015, art. 3.c) Main rule: Freight forwarder is considered as contractual carrier Freight forwarder intermediary only if (cumulated): 1. Services not undertaken in the freight forwarder s own name (no undisclosed subcontractors) 2. Services not undertaken at freight forwarder s own account (no undisclosed profit but full transparency as to the fee and costs invoiced) 3. Customer duly informed that freight forwarder undertakes the services as intermediary only Note: Freight forwarder entitled to provide part of the services as intermediary PAGE 6

7 NSAB 2015 LOADING/STOWAGE/SECURING Challenge: The obligations and responsibility of loading / discharging and stowage /securing is often unclear Does the driver assisting with these operations act on behalf of (1) the freight forwarder / carrier or (2) the shipper / consignee? New provision, art. 5, subsection 4: Unless otherwise agreed, it is the customer s obligation to arrange the loading and unloading of the goods and it is the freight forwarder s obligation to arrange the stowage. PAGE 7

8 NSAB 2015 LIMITATION GROSS NEGLIGENCE NSAB 2000: Freight forwarder s liability is limited to SDR 8.33 per kg damaged or lost goods. The limitation is applicable, even in case of gross negligence caused by the freight forwarder, his employees or his subcontractors. New provision, NSAB 2015 art. 6: The freight forwarder is not entitled to invoke limitations, if loss or damage is caused wilfully or grossly negligent by the freight forwarder himself or his own employees. PAGE 8

9 NSAB 2015 LIEN ON CARGO ART. 14 The freight forwarder has the right of retention and lien on goods under his control for fees and expenses etc. Lien includes as well fees not related to the goods actually retained Lien and retention are lost, if the title to the goods have passed on from customer to third parties prior to excessing the lien or retention PAGE 9

10 NSAB 2015 LIMITATION Art. 21 (limitation as contractual carrier) Damage to or loss of goods: SDR 8.33 Delay (including delay in picking up): freight amount Liability in relation to other services: SDR 100,000 PAGE 10

11 NSAB 2015 LIMITATION Art. 24 (limitation as intermediary: Basically SDR 50,000 per assignment Limitation capped to a total of SDR 500,000 as regards any one occurrence N.B.: Additional limitations apply (art. 24, par. 2) PAGE 11

12 NSAB 2015 LIMITATION Art Liability for cross-labelling or wrongful delivery Before NSAB 2015: Freight forwarder released from further liability, if he claimed the goods as a total loss and paid the limitation amount NSAB 2015, art. 20, schedule B: Obligations to redeliver the goods to the agreed destination Obligations limited to carriage with same mode of transport For non-compliance, liability limited to the full value of the goods PAGE 12

13 NSAB 2015 STORAGE SERVICES 1) Unless otherwise agreed, the freight forwarder is obliged to arrange insurance of the goods stored, based on the invoice value +10% 2) Insurance obligation limited to risk of fire, water and burglary ( property risks ) 3) Waiver of freight forwarder s liability for these risks, if insurance has been take out by the freight forwarder as per these provisions 4) For other loss or damage liability as per the main rules 5) Global limitation of SDR 500,000 in relation to all customers claim PAGE 13

14 NSAB 2015 NETWORK (CLAUSE 2) If a certain mode of transport has been agreed (for the entire transport) or the leg of transport where the goods have been lost or damaged is located Then the law or commonly used conditions to such mode of transport shall apply, replacing NSAB in relation to liability (including limitations), notice of claim and time-bar PAGE 14

15 FOR FURTHER DETAILS OR ADVICE, PLEASE CONTACT: Henrik Thal Jantzen, partner Direct phone: Cell: PAGE 15

16 OR ANY ONE FROM OUR MARITIME AND TRANSPORT LAW TEAM: Jakob Rosing, partner: / jro@kromannreumert.com Morten Schou Kierulff, lawyer: / msk@kromannreumert.com Johan Lønberg, lawyer: / jlo@kromannreumert.com Tine Fomsberg, lawyer: / tif@kromannreumert.com Thomas Åkerstrøm Nielsen, assistant attorney: / thm@kromannreumert.com Rudi Skjødt Jensen, assistant attorney: / rsj@kromannreumert.com PAGE 16