The logistics contract as such is not codified in the law. Neither in the BGB nor in the HGB is a section on the logistics contract. Rather, logistics contracts are so-called mixed-type contracts that contain elements of different legally standardized contract types. In this context, the following should be mentioned in particular: storage contract, transport or freight contract, forwarding contract, service and work contract.
Each type of contract legally follows its own liability regime.
1. Freight contract
As is well known, the freight contract is regulated in §§ 407 et seq. HGB. The liability of the carrier for damage to goods and delay can be found in §§ 425 ff HGB.
2. Forwarding contract
As far as the liability of the freight forwarder is concerned, Section 461 of the German Commercial Code (HGB) largely refers to the corresponding liability provisions that apply to the carrier.
3. Storage contract
In accordance with Section 475 of the German Commercial Code (HGB), the warehouse keeper is liable for damage caused by loss or damage to the goods in the period from acceptance to storage to delivery, unless the damage could not be averted with the care of a prudent businessman. This can be referred to as custody or liability for suspected fault.
4. Other logistics services
Other logistics services, such as order picking, labeling, but also assembly and repair, are generally legally a service that is regulated in §§ 611 ff BGB. However, there may also be a work contract (Section 631 BGB).
In principle, the service provider has unlimited liability for all adequately causal damage (proximate cause) and for any form of fault, including slight negligence. The service contract law does not recognize a limitation of liability in terms of amount, such as for the freight or forwarding contract.
5. General German Forwarding Conditions (ADSp)
As is well known, the ADSp (currently in the 2017 version) are not a law, but rather general terms of trade, which only apply if they have been agreed by the contracting parties.
The ADSp apply in accordance with section 1.14 for transport contracts, i.e. in particular forwarding, freight and storage contracts as well as other transactions that are usually part of the forwarding trade. These also include the logistical services customary for a forwarding agency if they are related to the transport or storage of goods, in particular order picking, labeling and returns processing.
The ADSp contained in Section 22 ff regulations on the liability of the freight forwarder and, particularly important, detailed liability limitations in Section 23 ff.
Important: The limitations of liability mentioned there do not apply in the case of so-called qualified fault (Section 27 ADSp).
Above all, however, you have to keep in mind that the ADSp only apply to logistics services that are customary for a forwarding agency, but not to other services provided by the logistics service provider.
6. Logistics terms and conditions
The logistics terms and conditions apply – if agreed – in accordance with section 1.1 for all (additional) logistics services that are not covered by a transport contract according to section 2.1 of the General German Forwarding Conditions or by a freight, forwarding or storage contract, but by the contractor are provided in the economic context of such a contract.
This includes the services of a call center, goods handling, goods testing, goods preparation, assembly, repair, quality control, price labeling, etc.
The logistics terms and conditions also contain express provisions on the liability of the contractor, i.e. the logistics service provider (see section 14 there). The contractor is only liable if he is at fault for the damage he has caused. In addition, the resulting legal and contractual liability is limited to the foreseeable, typical damage and the amount to EUR 20,000 per case of damage, etc. For details, reference may be made to Section 14 of the Logistics Terms and Conditions.
Attention: The logistics terms and conditions also contain a clause in section 15, according to which the exemptions and limitations of liability do not apply if there is qualified fault, e.g. in the event of grossly negligent or willful breach of essential contractual obligations by the contractor or if the contractor fraudulently concealed the damage or assumed a guarantee for the quality of the logistical service. For details, see § 15 of the logistics terms and conditions.
7. Individual contractual agreement to limit liability
Experience has shown that it is more common that clients with a strong market position do not agree to the ADSp and / or the logistics terms and conditions. In such a case, it is of vital importance for the logistics service provider to agree specific liability restrictions in individual contracts and then to coordinate these with his insurance company. If he fails to do this, the unlimited legal liability according to the German Civil Code (BGB) for any form of fault, including slight negligence, applies, especially in the area of service contracts.
Particular care must be taken in the formulation of the liability clause in logistics contracts. This applies in particular if the client does not agree to a blanket inclusion of the ADSp or the logistics terms and conditions, but insists on liability under the law (BGB and HGB). A reasonable service provider should not agree to the general clause that the liability of the logistics service provider is based on the statutory provisions, but should always insist that the liability be appropriately limited. Otherwise, an order that appears lucrative at first glance can quickly become a liability trap that destroys existence.
Dr. Wolfgang Gottwald
Attorney at law
(Original Version in German. English translation largely provided by Google Translator. Errors possible)