The German Freight Forwarders' Standard Terms and Conditions (ADSp) 2017, which entered into force on 1 January 2017, are designed to protect forwarders and close any potential liability risk gaps, particularly for organisations involved in air transport.

In 2010 and 2011 the Federal Court of Justice ruled (I ZR 194/08 and I ZR 50/10) that any forwarder which offered its services on the basis of the previous version of the terms and conditions (ADSp 2003) could not rely on the limitations of liability under the Montreal Convention.

These judgments were based on Article 27 of ADSp 2003, which stated that forwarders could not rely on the limitations of liability in cases of wilful misconduct or gross negligence.

However, some have argued that the judgments were based on a misunderstanding of ADSp 2003 because (for example) the Montreal Convention had entered into force in Germany in 2004 and its liability regime was unknown when the respective clause was drafted.

The clause was originally written in 1998 and until the abovementioned Federal Court of Justice decisions, it was generally understood that the clause only repeated part of the Commercial Code and therefore applied only to transport that was governed by German law, not to international transport.

To clarify this issue and for future reference, the updated ADSp stipulates that it does not apply to international transport. The respective clause reads as follows:

Clause 27.1 ADSp is not applicable on statutory provisions, such as Article 25 MC, Article 36 CIM or Article 20, 21 CMNI, which extend Freight Forwarder's liability, allows extending or expanding the imputation of fault of servants or third parties.

The clause protects forwarders and will help to avoid similar court decisions in future.

For further information on this topic please contact Carsten Vyvers at Arnecke Sibeth Dabelstein by telephone (+49 69 97 98 85 0) or email ([email protected]). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.

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