Contracting company

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International shipping company Johann Aschberger, Meran , approx. 1910

Contracting companies (less often: contracting workers) are companies that provide paid services as a transporter of transported goods ( goods ) and / or other commercial services for other companies as a total service, and are subject to their direct instructions on the execution of the service provision.

The contract haulage company is part of a value chain . The content of the contract transport contract with the client ( forwarding agent , carrier ) can partially include the provision of services (transport), vehicle rental ( truck ) and / or leasing of labor (the driver and / or assembly assistant / co-driver, etc.).

Neither the freight forwarder nor the carrier nor the subcontractor are the owners of the goods on which they provide the transport service.

description

The contractor is an independent commercial entrepreneur who undertakes on the basis of a contract ,

  • transport of goods and possibly other services,
  • with his means of transport or work and
  • the employees he employs

to provide. In contrast to the freight forwarder, however , there is usually no contract for work with the client (e.g. freight forwarder) , since the contractor does not owe the transport ( successful transport ), but rather the provision of vehicles and personnel on the instructions of the client. The exact instructions for the transport, the transport period, delivery modalities, collection, returns, etc. are given by the client directly to the employees of the contractor.

Clients use the services of contractors for one or more of the following aspects:

  • because they do not have the necessary transport and / or work equipment themselves,
  • because they have no / too few suitable workers or other required capacities / skills,
  • if you want calculation security.

Demarcation

The forwarder owes the organization of the transport from the forwarding business. So z. B. the selection of the means of transport (e.g. railway or truck ), the selection and commissioning of the executing company and the insurance of the goods. The freight forwarder can provide all of these services himself ( self-entry § 458 HGB). The freight forwarder can also use a carrier and a contractor.

The carrier owes the transport of the freight under the freight contract , whereby he can use a third party. This can be a carrier himself or a contractor.

In contrast to the rental car company , the contractor with one or more vehicles and the necessary personnel usually only works for one other company during the same period.

Like the subcontractor, the contract carrier is legally independent in the way in which it fulfills its contract, but is largely bound by the client's instructions.

The overall performance of the subcontracting company is essentially the transport of goods. It differs from other entrepreneurs who provide services and leave workers, but for whom the transport service is not in the foreground.

The subcontractor usually does not issue any legally binding shipping documents (e.g. waybill , delivery note , loading lists , bordero ), but receives them from the carrier (or forwarder). The transport of the freight to the client (carrier or forwarding agent) does not usually take place in accordance with the general terms and conditions of the contractor.

In relation to the client and the recipient of the freight shipment, the freight forwarder or carrier bears the full risk of non-performance, e.g. B. due to the insolvency of the contractor or theft of the transported goods.

See also

Web links

literature

  • Johann Georg Helm: Forwarding law. de Gruyter, Berlin 1986, ISBN 3-11-010713-9 (see, for example, §§ 412/413, margin no.138 on the liability of the contractor company).
  • Thomas Wieske: Transport law recorded quickly. 3. Edition. Springer, Berlin / Heidelberg 2012, ISBN 978-3-642-29725-0 .
  • Ingo Koller: Transport law. Comment. 8th edition. CH Beck, Munich 2013, ISBN 978-3-406-65106-9 . (Commentary, inter alia, on §§ 467 ff. HGB)
  • North German Fuhrherren-Zeitung. independent body to promote the overall interests of the haulage industry and its related subjects; official publication organ of the Fuhrwerk-Berufsgenossenschaft, Hamburg 1904.
  • German Fuhrherren-Zeitung. Independent body to promote the overall interests of the haulage industry and related subjects; official organ of the Association of German wage transport companies; official publication organ of the Fuhrwerk-Berufsgenossenschaft, Hamburg 1905–1906.

Individual evidence

  1. ↑ For example, services relating to the transport and installation / assembly of furniture.
  2. ↑ E.g. for a forwarding company in the context of a forwarding business or for a carrier .
  3. ↑ The contract transport contract is basically a mixed contract consisting of vehicle rental and temporary employment. See also Schütz in Straube, HGB 2 margin no. 20 on § 425; Peter Jabornegg , Commentary on the HGB [1997] margin no. 7 on § 425; HS 12273/13; SZ 56/129; ZVR 1986/7; FL-OGH in case 4 C 201 / 98-23.
  4. ↑ The freight forwarder in the classical sense, although organized by definition, only the transport (§§ ff 453rd HGB), but is often in its own name for the carrier, and then exits to the outside even as executive transports on (§ 458 HGB [1] )
  5. ↑ Austrian Supreme Court (OGH) in 4Ob592 / 87: In contrast to the freight contract, in which the entrepreneur (carrier) owes the client (sender) the success of the assumed activity, which is the transfer of the thing to another location, is the so-called "Contract transport contract" characterized in that the entrepreneur has to provide the client with a manned vehicle for any load and journey according to the instructions of the client (HS 11.204 / 29; EvBl 1984/13; Schütz in Straube, HGB, margin no. 20 to § 425 ; Helmet in GroßKomm.z. HGB 3 note 45 to § 425).
  6. ↑ For the delimitation of whether a service contract, service provision contract, a civil-legal contract for work, lease or a mixed contract, see BGH decision I ZR 102/158 BeckRS 2016, according to which it depends on the individual case.
  7. ↑ According to the findings of the Austrian Supreme Court, there is no freight contract if the entrepreneur does not owe the success of his activity, i.e. the transfer of the item to another location, but, for example, to provide a manned vehicle for any loading and travel according to the instructions of the client Has. Rather, there is a so-called contract transport contract, so that neither the CMR nor the provisions of the HGB on the freight contract itself are applicable. Therefore, the recipient cannot assert his claims from the freight contract to which he is entitled against the carrier in accordance with §§ 433 Paragraph 2, 434 and 435 HGB against the contractor employed by the latter. (OGH in 2Ob514 / 80; 5Ob679 / 81; 7Ob643 / 83; 7Ob29 / 84; 4Ob592 / 87; 8Ob1532 / 89; 6Ob1678 / 95).
  8. ↑ Österreichischer OGH in 7Ob643 / 83: Anyone who merely provides a carrier with a vehicle and driver according to the carrier's instructions for a mileage and demurrage fee is not liable to the recipient as a sub-carrier according to the CMR; he is also not responsible for any fault on the part of the driver who is not generally incompetent.
  9. ↑ BGH decision I ZR 102/158 BeckRS 2016. The contractor can be held liable if he is at fault with regard to the driver's choice.