В статье детально рассматривается институт транспортного экспедирования в голландском праве, а также судебная практика в Нидерландах. В частности, исследуются две роли транспортного экспедитора: как экспедитора в собственном смысле, то есть посредника между перевозчиком и купцом, и экспедитора-перевозчика. Особенное внимание уделяется Правилам осуществления профессиональной деятельности транспортного экспедитора (General terms and conditions) и условиям признания их частью конкретного договора экспедитора с клиентом. Значительное внимание авторы уделили также условиям применения правового института удержания в отношении товаров в пути, субъектом которого является транспортный экспедитор. В качестве иллюстрации приводится пример из практики судебного рассмотрения спора, возникшего из международной (магистральной) перевозки автотранспортом груза из Нидерландов в другое государство-член ЕС по Конвенции ЦМР от 19.05.1956.
In the ordinary course of business, the freight forwarder is exposed to (financial) risks of all sorts. Not only because the freight forwarder will often advance substantial amounts relating to carriage arranged for his principal, but also because in most cases a freight forwarder will enter into contracts with carriers in his own name instead of “for and on behalf of” his principal. Of course, for a principal the latter circumstance is one of the most important benefits of instructing a freight forwarder, as the principal prefers a one stop shop in order to deal with the freight forwarder only instead of having to deal with multiple carriers and other parties involved with the carriage (i.e. agents, stevedores, etc.). On the other hand, by contracting directly with carriers, a freight forwarder will be able to calculate a certain – albeit often limited – margin for himself. It is up to the freight forwarder to ensure that, in situations like these, the effects of this direct way of contracting will not lead to considerable financial risks immediately taking away such limited commission.
One of the key concerns of entering into two separate contracts (the forwarding contract on the one hand and the contract of carriage on the other hand), is that the characterization of the forwarding contract has to be taken into consideration by the freight forwarder. If, under Dutch law, the freight forwarder does not explicitly stipulate in the forwarding contract that he acts as a freight forwarder and there is room for doubt as to his contractual capacity, the freight forwarder will be considered to act as a carrier and the contract will be characterized as a contract of carriage. This is a well-established rule in case law in the Netherlands. [1] The consequence is, amongst others, that a liability regime less favourable for the freight forwarder will apply. [2] To avoid this the freight forwarder will have to ensure that there can be no doubt as to his capacity vis-à-vis his principal.
Whether the freight forwarder is to be considered as a carrier has to be determined in accordance with the facts of the case at hand and circumstances which will be taken into account are, for example, the way of invoicing, the terminology used in the contract, the description of the freight forwarder’s activities in the trade register, the past relations, if any, between the freight forwarder and his principal, the use of vehicles owned by the freight forwarder himself and reference to applicability of the Dutch Forwarding Conditions of the FENEX (Netherlands Association for Forwarding and Logistics, hereafter “FENEX-Conditions”).
This brings us to the next issue, or rather preventative measure a freight forwarder could take in order to secure his position, namely ensuring that the FENEX-Conditions form part of the forwarding contract. These FENEX-Conditions are general conditions which are drawn up especially for use by freight forwarders and contain broader formulated rights for the freight forwarder than the provisions of the Dutch Civil Code. [3] Pursuant to section 6.5.3 of the Dutch Civil Code, general terms and conditions (“GTCs”) – like the FENEX-Conditions – are voidable if the freight forwarder did not provide the principal a reasonable opportunity to take note of these conditions. Such a “reasonable opportunity” has been provided if a copy of the GTCs is handed over to the principal before or during concluding the contract. [4] If the FENEX-Conditions are not handed over timely, there are situations in which these conditions may still apply, for example if the principal was already familiar with these GTCs, because they were handed over timely at the occasion of executing previous forwarding contracts with the freight forwarder in question and reference is made to the applicability of these conditions in the forwarding contract at hand. [5] However, it has to be emphasized that Dutch Courts are reluctant in considering that GTCs apply when not timely handed over the other party and the heavy burden of proof that the principal was in fact familiar with the GTCs rests on the freight forwarder.
Nevertheless, in case the FENEX-Conditions do apply, the aforementioned broader formulated rights of the freight forwarder are perfectly illustrated by article 19. Article 19 FENEX-Conditions confers upon the freight forwarder a right of pledge, as well as a contractual possessory lien (“retentierecht”), on all goods, documents and moneys in his possession, for whatever reason, with respect to all claims the freight forwarder has or may have at any time against the principal or owner (including claims regarding previous orders). This is an improvement compared to the much more limited possessory lien provided for in article 8:69 Dutch Civil Code, which can only be exercised with respect to unpaid costs strictly related to the goods which are in possession of the freight forwarder at that time and resulting from the forwarding contract in question (andnot for unpaid invoices in respect of previous orders).
The final issue that the freight forwarder has to consider, albeit a very straight forward one and connected to the previous two issues, is acting his part vis-à-vis the carrier. Meaning to do everything that is expected from a shipper under a contract of carriage, as this will secure the rights of the freight forwarder, not only vis-à-vis the carrier, but also vis-à-vis its principal.
The aforementioned three issues are best illustrated by a case we recently were involved in. A freight forwarder had entered into a framework forwarding contract with a principal, pursuant to which he was obliged to arrange for the transport of a so-called international ‘line haul’ between the Netherlands and another EU country. The principal in question was a logistics company which had been instructed by the owner of the goods. Pursuant to the framework forwarding contract, the freight forwarder entered into a contract with a road carrier for the daily carriage of goods. The freight forwarder subsequently advanced the freight charges of the carrier (as shipper under the contract of carriage) and only invoiced his principal after receipt of the signed consignment note proving delivery of the goods, which is not unusual in the forwarding business (as the freight forwarder’s principal would only then know for sure that the carriage had been carried out properly). Furthermore, the carrier loaded its trucks daily at a warehousing company, which was also instructed by the owner of the goods. This warehousing company drew up the consignment notes and retained the first copy of the consignment note, whilst the second and third copy accompanied the goods. The third copy has to be returned to the freight forwarder after it has been signed by the consignee. Furthermore, the warehousing company put itself as shipper of the goods on the consignment note.
Then tragedy struck, so to speak, when the freight forwarder’s principal did not make payments properly and subsequently started refusing to pay or simply could no longer pay the costs involved with the line haul carriage. After all, the carrier will address the freight forwarder directly for its freight charges and the latter can not use the excuse of non-payment by his principal in order to leave the carrier’s freight costs unpaid. What is the freight forwarder to do in such a situation?
Assuming for the sake of argument, that the FENEX Conditions are applicable and have been handed over timely and can therefore not be declared void, the answer seems simple. Pursuant to article 19 of the FENEX Conditions, the freight forwarder can exercise a possessory lien over the goods designated for the line haul to the country of destination in order to put pressure on the principal to settle the freight forwarders entire claim (so also the costs related to previous carriages). However, under Dutch law, one of the conditions of exercising a possessory lien is that the retaining party must have “actual power” over the goods in question. [6] If this actual power is non-existent, the goods cannot be held retained by the retentor. Does actual power exist when the freight forwarder never actually possesses the goods? Pursuant to article 3:107 Dutch Civil Code, ‘actual power’ is defined as direct or indirect possession or custody. This is where the freight forwarders’ position vis-à-vis the carrier becomes important. Since the carrier will collect the goods in question directly at the warehousing company, after which they will immediately be carried to the country of destination, the freight forwarder can only exercise indirect power over the goods through the carrier. Whether or not this indirect power can be exercised by the freight forwarder in a specific case will have to be determined in accordance with the contract of carriage and the law applicable thereto.
The contract of carriage, in our example, concerns international road carriage, for which reason the CMR [7] is mandatory applicable. Article 12 CMR provides the right of disposal to the shipper [8] and, more specifically, provides the shipper with the right to request the carrier to withhold the goods in transit thereby creating a possibility to exercise a possessory lien. However, at this point two issues remain:
1) the identity of the shipper as mentioned in article 12 CMR; and
2) are the instructions in accordance with the requirements of article 12 CMR?
As to the issue of the identity of the shipper, it seems clear that, in our example, the freight forwarder is the contractual party of the carrier and therefore the shipper mentioned in article 12 CMR. However, since the warehousing company in our example acts as the actual shipper by drawing up the consignment note, declaring itself to be the shipper and retaining the first copy of the consignment note, discussions may arise as to which party is to be considered as shipper and should consequently be entitled to exercise the right of disposal attached to that position. For the carrier this situation will cause a major dilemma as to whose instructions to follow; the instructions of the shipper “on paper” or the instructions of its contractual opposite party. Even more since article 9 section 1 CMR provides that the consignment note “shall be prima facie evidence of (…) the conditions of the contract of carriage” and it could be argued that the consignment note provides prima facie evidence of the circumstance that the warehousing company is in fact the shipper in our example.
However, even if the carrier is prepared to follow the instructions of the freight forwarder, article 12 CMR contains requirements which have to be fulfilled, in order for the carrier to be bound by instructions of the shipper, namely the shipper has to insert the new instructions on the first copy of the consignment note and hand this copy over to the carrier, the shipper has to indemnify the carrier for all expenses and damages resulting from carrying out such instructions, the carrying out of the instructions has to be feasible and shall not interfere with the ordinary course of business of the carrier. If the instructions of the freight forwarder do not meet these conditions/requirements, the freight forwarder has no right of recourse against the carrier, should these instructions to retain the goods not be carried out correctly. For example, if the aforementioned conditions are not met and the carrier accidentally releases the goods (and thereby frustrating the freight forwarders possessory lien over the goods in transit), the carrier cannot be held liable by the freight forwarder. [9] Consequently, the way the freight forwarder acts vis-à-vis the carrier may influence the possible ways in which the freight forwarder can exercise its rights vis-à-vis its principal.
Summarizing, if the freight forwarder ensures there is no doubt as to his capacity vis-à-vis its principal, and further ensures that the FENEX-Conditions form part of the forwarding contract, which cannot be interpreted otherwise, in a way that prevents those conditions from being declared void and also acts in its rightful capacity of shipper vis-à-vis the carrier, the freight forwarder may at least have the possibility of exercising a possessory lien over the goods.
NOTES
[1] Inter alia District Court of Rotterdam 24 November 2010, LJN: BO7248; District Court of Rotterdam 10 November 2010, LJN: BO6309; District Court of Rotterdam 17 January 2007, LJN: AZ8549; Court of Appeal The Hague 30 May 1996, 2006, 131; Court of Appeal The Hague 18 September 1990, S&S 1992, 4.
[2] For example, a limited liability for the road carrier of 8.33 SDR/kg versus a limited liability for the freight forwarder of 4 SDR/kg (based on the Dutch Forwarding conditions of the FENEX).
[3] Article 8:60 and further Dutch Civil Code.
[4] Article 6:233 section b in conjunction with article 6:234 section 1 Dutch Civil Code. If the contract is entered into electronically, the handing over of the general terms and conditions can also be arranged by providing them electronically in such a way that the principal can save the general terms and conditions for later perusal (see article 6: 234 section 2 Dutch Civil Code).
[5] Dutch Supreme Court 1 October 1999, NJ 2000, 207 (Geurtzen/Kampstaal).
[6] Pursuant to article 3:290 Dutch Civil Code the other conditions are the existence of a due and payable claim, non-performance by the debtor, a connection between the claim and the postponed obligation, the creditor may not be in default itself, nor must performance be permanently impossible and, finally, the creditor is not authorised to postpone its obligation if the debtors claim regarding delivery of the goods is not accessible for an arrest.
[7] Convention on the Contract for the International Carriage of Goods by Road, done at Geneva, 19 May 1956.
[8] The CMR uses the term “sender” instead of shipper.
[9] Article 12 section 7 CMR.
Авторы: Marieke G. van den Dool
(Van Steenderen MainportLawyers)
Источник: http://www.forwarderlaw.com/library/view.php?article_id=817