Wednesday, 22. May 2024

Previous slide
Next slide

Recurring topic: The liability of the logistics service provider

Logistics is an ambiguous term, especially for the layman. You come across it frequently (e.g. amazon logistics), but what it actually means remains nebulous for many people.

Logistics includes transport services (freight business), the services of a freight forwarder and warehouse keeper, but also other services such as picking and packing, returns processing, refurbishing, and so on.

How is the logistics provider actually liable for these individual services?

1. The Law

If nothing is contractually regulated, liability is governed by law.

For this purpose, the respective service must be assigned to a specific contract type regulated by law. Freight services (freight business) and forwarding services (forwarding business) are regulated in the HGB. The same applies to warehousing contracts (warehousing business).

For freight and forwarding, the HGB contains very specific liability regulations in each case with certain liability limitations.

For the warehouse keeper, on the other hand, liability is not limited in terms of amount in § 475 HGB. Rather, the warehouse keeper is liable “for the damage caused by loss of or damage to the goods in the period from acceptance for storage to delivery”. The only restriction is that the warehouse keeper is not liable if the damage “could not have been prevented even by the diligence of a prudent businessman”.

If, on the other hand, the warehouse keeper has acted with (slight) negligence, then the damage could have been averted. This has the consequence that the legally unlimited liability of the warehouse keeper comes into effect.

Picking etc. is not regulated in the HGB at all, but represents a service or work performance according to the BGB. And the BGB does not know any limitation of liability, but provides for (unlimited) liability for any form of fault (§ 276 BGB: intent and negligence, including slight negligence).

2. German Freight Forwarders´ Standard Terms and Conditions (ADSp)

Usually, logistics companies insist on the applicability of the ADSp, currently predominantly the ADSp 2017.

The ADSp 2017 contain in clause 23 et seq. various limitations of liability, also for the warehousing business (paragraph 24, limitations of liability in case of ordered storage, inventories and so on).

If the applicability of the ADSp is agreed upon, the logistics service provider is therefore also protected in his liability for stored goods by a limitation of liability.

But beware: This limitation of liability does not apply in the case of so-called “qualified fault” (clause 27 ADSp 2017).

Qualified fault exists if the damage was caused by intent or gross negligence or by (even slightly negligent) breach of essential contractual obligations. In the latter case, however, claims for compensation are limited to the foreseeable, typical damage.

We refrain from explaining specific exceptions at this point.

3. Contracts and Standard Terms and Conditions

If the ADSp have not been agreed upon or if they do not apply for any other reason, the liability by law applies (see item 1 above).

It is therefore fundamentally important for the logistics provider to limit his liability in a contractually appropriate manner.

In practice, this is often done if the customer does not agree with the liability limitations of the ADSp. For his part, the logistics provider will not or should not agree to unlimited liability or to “liability according to the German Commercial Code”, since, as explained, this does not provide for any limitation for the warehousing business and for services or work performance.

Special attention must be paid to the design of the liability clause. General terms and conditions (§§ 305 et seq BGB) must also be taken into account.

4. Insurance

Regardless of whether liability is governed by law, ADSp or a specific contractual arrangement, it is always important and advisable to coordinate liability with one’s own insurance company so that, if possible, there are no discrepancies (gaps in coverage) between the scope of liability and insurance coverage.

Dr. Wolfgang Gottwald
Attorney at Law

Attorney at Law

Leopoldstraße 51
80802 München

Tel.: 089/383 293-10
Fax: 089/383 293-13