Contract of carriage
In the freight business, a freight contract is a special transport contract for the transport of freight .
General
The contracting parties to the freight contract are the sender and the carrier . There are specific freight contracts and waybills for the various means of transport . For land transport there is the CMR freight contract and waybill ( road freight transport ) or rail waybill ( rail freight transport ), in inland shipping there is the loading note or in air freight transport the air waybill . The Maritime is regulated separately and knows the bill of lading ( § 513 HGB ) or alternatively the sea waybill ( § 526 HGB).
Legal issues
In Germany , a freight contract is a type of contract under commercial law ; in terms of the legal system, it belongs to transport law . In accordance with Section 407 of the German Commercial Code, the freight forwarder is obliged by the freight contract to transport the freight to the destination and deliver it there to the recipient ; the sender is obliged to pay the agreed freight . A waybill is issued for the freight contract ( § 408 HGB). The consignment note signed by both parties serves according to § 409 HGB - until proven otherwise - as proof of the conclusion and content of the freight contract as well as for the acceptance of the freight by the carrier. From Section 418 (2) of the German Commercial Code (HGB) there is a blocking function , according to which the sender's right of disposal expires after the freight has arrived at the delivery point and from that point on the recipient is entitled to it.
The freight is payable in accordance with Section 420 Paragraph 1 HGB upon delivery of the freight. The recipient has to pay the freight still owed up to the amount shown on the consignment note. Since both the sender and the recipient are liable for the freight ( Section 421 Paragraph 2 HGB), there is a legal obligation to assume liability (Section 421 Paragraph 4 HGB). For the unpaid freight, the carrier has a statutory right of lien on the freight in accordance with Section 440 (1) HGB .
The freight contract is a consensual contract and not a real contract , i. H. the mutual agreement of the contractual partners within the meaning of § § 145 ff. BGB ( offer and acceptance ) is sufficient for legal effectiveness. There is therefore no need to physically hand over the freight and the waybill (so-called real act ) in order to effect the obligatory transaction (basic transaction ) . The acceptance of the goods and, if applicable, a consignment note are already part of the performance of the contract. The freight contract is also a contract for work and services and not a service contract because the focus is on the successful delivery of the freight. Ultimately, according to prevailing opinion , the freight contract is a contract in favor of third parties , insofar as it grants the recipient its own rights vis-à-vis the carrier, such as from Section 421 (1) HGB.
A special shape is not required (freedom of form). A consignment note must be issued at the carrier's request; however, there is no obligation to issue from the outset.
Because of the large number of possible cases and the applicable regulations, transport law is one of the more difficult areas of law that can only be fully mastered by specialists. Articles and case law on transport law are published in the specialist journal "Transportrecht (TranspR)".
Demarcation
The freight contract is to be distinguished from the forwarding contract (§ § 453 ff. HGB). The carrier is obliged to transport the freight; the freight forwarder usually only takes care of the transport. The procurement is usually that of the sender with a forwarding order commissioned forwarder in turn one or more subsequent carriers ( shipping forwarder in advance , the main carrier in the main run , deconsolidator the run- commissioned) with the actual freight contract for the transport of freight. In the relationship between the client and the forwarding agent, there is no freight contract, but an agency contract ( Section 675 BGB).
International framework
In international freight law there are the following international contracts , the regulations of which are mostly mandatory for the member states and the freight contract partners operating in these member states:
- the International Agreement on Contracts of Carriage by Road (CMR) for international road freight transport,
- the Convention on International Carriage by Rail (COTIF) with Annex B "Uniform Rules for the Contract for the International Carriage of Goods by Rail - CIM",
- the Warsaw Convention (WA) and the Montreal Convention (MT) for air freight traffic, as well as
- the Budapest Convention on the Contract for the Carriage of Goods by Inland Waterway ( CMNI ) .
- Austria and Switzerland
For Austria , freight contracts with motor vehicles are regulated by the federal law on the commercial transport of goods by motor vehicles (Goods Transport Act 1995 - GütbefG) . The Corporate Code (UGB) has adopted the international CMR freight contract in Section 439a UGB. The General Terms and Conditions for Transporters (AGT) apply to national and international freight transport .
In a freight contract, the carrier in Switzerland takes on the obligation to carry out the transport of goods in return for a fee for the sender ( Art. 440 Paragraph 1 OR ), whereby the law of an order applies as an alternative. In accordance with Art. 442 OR, the sender has to ensure that the goods are properly packaged and is liable for the consequences of any defects in the packaging that are not visible from the outside . According to Art. 449 OR, the carrier is also liable for the negligence of any intermediate carriers , but can take recourse against them.
See also
literature
- Thomas Wieske: Transport law recorded quickly. 3rd edition, Springer-Verlag, Berlin Heidelberg 2012, ISBN 978-3-642-29725-0 .
- Ingo Koller: Transport law. Comment. 9th edition, Munich 2016, Verlag CH Beck.
- Olaf Hartenstein, Fabian Reuschle (ed.): Handbook of the specialist lawyer for transport and forwarding law. 3rd edition, Cologne 2015, Carl Heymanns publishing house.
Individual evidence
- ↑ Peter Bülow, Commercial Law , 2009, p. 185
- ↑ Springer Fachmedien GmbH (ed.), Gabler Wirtschaftslexikon , Volume I, 2004, p. 1092
- ↑ BGH, judgment of December 2, 2004, Az .: I ZR 48/02
- ↑ The qualification of specialist lawyer for transport and forwarding law can be acquired in the German legal profession .
- ↑ currently in the version of BGBL. I No. 153/2006
- ↑ Austrian Chamber of Commerce of January 5, 2018, General Terms and Conditions for Transporters (AGT)
