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14 March 2012
The Antwerp Court of Appeal recently rendered a significant decision which sets out the principles relating to Belgian freight forwarding and considers the commission contract as a sui generis contract, specific to the commercial trade.
A Belgian freight forwarder received instructions from a German cargo interest to:
During the sea carriage the goods were damaged because they were not properly stowed inside the containers. The German principal refused to pay the freight forwarder's invoices, filing a counterclaim for cargo damages.
The case was brought before the Court of Antwerp, where the first instance judge decided in favour of the Belgian freight forwarder. The Antwerp Court of Appeal subsequently had to consider a number of legal issues relating to Belgian freight forwarding and when a party will be considered a commissionair-expediteur in Belgian law.
In Belgian transport law terms, a commissionair-expediteur is a specific transport intermediary with specific liabilities. It makes a commitment to a principal to act in its own name, but on the (undisclosed) principal's account. It concludes contracts with third parties that relate to cargo forwarding, and provides ancillary services (eg, in respect of insurance and customs formalities). In doing so, the commissionair-expediteur is not personally liable for shortcomings on the part of these co-contracting third parties. For example, if cargo damage occurs during sea carriage concluded by means of the commissionair-expediteur, liability rests with the carrier, rather than the commissionair-expediteur, unless a specific shortcoming can be proven on the latter's part. Therefore, a principal should pursue the claim against the actual carrier (potentially bringing a joint claim with the commissionair-expediteur).
Belgian jurisprudence has long debated the exact nature of a commission contract, with some experts considering it to be equivalent to a specific form of mandate. This view has been criticised because the concept of 'mandate', as laid down in the Civil Code, is not construed in the context of commercial activity. Moreover, a party acting under mandate does so on behalf of a principal, acting in the latter's name and disclosing its identity; in contrast, a Belgian commissionair represents itself, not the principal.
The court first sought to establish whether transport liability attaches to a commissionair-expediteur. It did so by determining the intentions of the parties when they concluded the contract. Did the freight forwarder commit itself to transport the goods and then subcontract with third parties? Alternatively, did it commit itself to finding third parties in order to conclude contracts them, but without committing itself in respect of their performance? Based on the negotiation correspondence leading to the commission contract and on the services as they were performed, the court concluded that in this case the freight forwarder acted as a commissionair-expediteur only, not as a contractual carrier.
The court noted that a commission contract is a commercial contract whereby a party commits to act in its own name on the account of an undisclosed principal. It makes a commitment to conclude contracts with third parties in relation to cargo forwarding without, in so doing, committing itself in respect of the cargo transportation or related activities. The court held that a freight forwarder bears no transport liability. The time bar for contractual liability as a commissionair-expediteur is 10 years.
The court then considered the principal's counterclaim for transport damages and dismissed an attempt to have such damages deducted from the freight forwarder's outstanding invoices. The court held that, in general, a Belgian freight forwarder under a commission contract makes only a 'best efforts' commitment. Therefore, the principal must present evidence that the freight forwarder was specifically at fault for the transport damage. Moreover, a freight forwarder will not be held liable for shortcomings on the part of third parties with which it concluded contracts according to the instructions that it has received.
In this case the court held that no specific shortcomings in relation to the performance of the commission contract had been established. Therefore, it dismissed the counterclaim and ordered the principal to pay the freight forwarder's invoices in full.
The court also held against the theory that a commission contract is a mandate, noting that the commission contract under Belgian law is a sui generis contract that is specific to commercial trade.
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