According to Section 408(1)(11) of the Commercial Code, necessary information and corresponding shipping papers for customs clearings must be prepared by the shipper. In Germany, these extra services become part of the main contract as a secondary obligation alongside the correct transportation of cargo. Non-consideration of these secondary obligations can lead to the same claim for compensation as for primary obligations.

Decision

The Aurich District Court (Decision 6 O 41/5, January 4 2016) recently dealt with a typical case that demonstrates the pitfalls of a contract regarding transportation and customs declaration of cargo.

The claimant entered into a contract with the defendant for the transport of garments from Germany to Switzerland. According to his statements later in court, the claimant had almost no experience with Swiss and German customs formalities and therefore asked the carrier for his in-house experience. The freight forwarder was then obliged in the freight forwarding contract to take care of the correct customs clearing at the Swiss border. The contract was governed by German law, as planned, before the cargo was reimported back to Germany. As the cargo was to stay in Switzerland for only a limited time, a €1 export certificate was necessary to free the cargo from Swiss customs duties. Customs papers in Germany are generally issued by the local customs station of the shipper's office and at the request of the shipper. The Swiss recipients issued a pro forma bill to the shipper in Germany to assist with the customs clearance.

Swiss Customs demanded the customs duties in full from the receiver, because the goods were declared to be imported permanently rather than temporarily. The shipper claimed compensation for the damages from the freight forwarder. He argued that it was the carrier's duty to take care of correct customs clearance. The carrier argued that he had promised only the correct usual customs clearance, as he had no other order or information. Moreover, it was the shipper's or receiver's duty to apply for the relevant €1 certificate. The contract contained no information regarding customs clearance. As the transport was cross-border transport, the issued Convention on the Contract for the International Carriage of Goods by Road (CMR) documents also made no reference to the €1 procedure.

The court held the main freight forwarder responsible for the damage, as he had promised not "a usual way" but the "correct way" of customs declaration. The application for the missing €1 papers could have been made and the necessity to do so was apparent from the pro forma invoices revealed at reimport. As the shipper declared that he was unaware of Swiss customs formalities, the carrier was found to have full responsibility for the correct customs declarations.

Comment

The decision underlines that not all of a freight forwarder's responsibilities under German law are clear at first glance. Following Section 407 of the Commercial Code, the carrier is obliged to undertake customs clearances in cross-border transport when necessary. In general, according to Articles 4 and 11 of the CMR (and, under German law, Section 408 of the Commercial Code), it is the shipper's duty to work out the complete waybill, including all necessary documents for the transport. As outlined in Articles 4, 6 and 7 of the CMR (and Section 408(1)(11) of the code), the shipper must instruct the carrier regarding the procedures relating to customs and other authorities. Therefore, the defendant was right in pointing out that it is not the obligation of the carrier to apply for the additionally required customs documents. The court stated that it was the carrier's duty to apply for the €1 documents in order not to pay Swiss customs duties, as the shipper had informed him of his lack of knowledge in that matter. The carrier had to fulfil more duties than he could derive from the contract itself. Although not expressly mentioned in the contract or elsewhere, working out the correct procedure for customs clearance and the application for the documents has become a duty of the carrier. This is a complete U-turn from the usual practice in transportation. In the end, the contractual relationship between freight forwarder, recipient and shipper is the basis for the allocation of duties. But even if all parties are professionals, carriers can become liable for unfulfilled, typical shippers' duties.

If carriers enter a contract to undertake cross-border transport for a new client, it is advisable to ascertain the shipper's experience regarding customs duties and necessary documentation. Carriers otherwise risk being held responsible if the wrong customs clearances lead to unexpected payments. Contracting parties should always clearly state which form of customs handling is required to make carriers' duties clearly visible.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.

For further information on this topic please contact Jan Tebbe-Simmendinger or Marco G Remiorz at Dabelstein & Passehl by telephone (+49 40 31 779 70) or email (j.tebbe-simmendinger@da-pa.com or m.remiorz@da-pa.com). The Dabelstein & Passehl website can be accessed at www.da-pa.com.