The leading unions of forwarders and cargo interests have both agreed to recommend the new Freight Forwarders' Standard Terms and Conditions (ADSp 2017), applicable from January 1 2017 onwards. The ADSp 2017 are the result of long negotiations aiming to modernise the former version of the ADSp adopted in 2003. The new ADSp 2017 have concluded a dispute between the unions, which came to a head with the recommendation of two different sets of terms and conditions in 2016 – on the one hand, the ADSp 2016, and on the other hand, the Transport and Storage Conditions (DTLB).
The ADSp 2017 are a compromise based on the rationale that the application of the ADSp 2016 and the DTLB would result in legal uncertainty and unavoidable conflicts. With the new ADSp 2017 the parties involved retrieve a familiar basis for the forwarding and logistics market in Germany.
The ADSp 2017 take the sender's interests further into account than previous versions, in particular by increasing the maximum liability of a forwarder per loss to €1.25 million (to €125,000 for losses or damage other than damage to the goods and to €2.5 million per damage event).
Much like the ADSp 2016, the ADSp 2017 increase the limitation of liability from €5 per kilogram (kg) to 8.33 special drawing rights (SDR) per kg for cargo damage. However, the liability is limited to 2 SDR per kg for multimodal carriage including a sea leg and, when the damage can be allocated to the sea leg of the transport, up to 666.67 SDR per package or per unit.
In addition, the ADSp 2017 limit the liability of the sender to €200,000 per damage event – for example, for damage arising from inaccuracy or incompleteness of the required information regarding the goods or insufficient packing or marking.
The ADSp 2017 also lay down in more detail the obligations of each party, as previously set out in the DTLB. However, crucial aspects such as the liability for loading and discharge, as well as rules on the exchange of pallets, have been left out as no compromise could be achieved. The ADSp 2017 will clarify many aspects of daily business; however, daily practice and the courts will ultimately decide on the relevance of some of the clauses which might be held invalid under the law.
For further information on this topic please contact Steffen Maelicke or Marco G Remiorz at Dabelstein & Passehl by telephone (+49 40 31 779 70) or email ([email protected] or [email protected]). The Dabelstein & Passehl website can be accessed at www.da-pa.com.
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