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23 January 2019
The German Freight Forwarders' Standard Terms and Conditions (ADSp) are a joint body of recommendations for shipping industry associations and freight forwarders. However, given that there are (at least) three versions – namely, ADSp 2003, ADSp 2016 and ADSp 2017 – many companies struggle to clearly identify the ADSp on which they should base their services.
In 2015 negotiations on a new version of the ADSp, which had last been amended in 2003, failed. The shippers' associations then presented their own terms and conditions alongside the German Transport and Storage Conditions (DTLB) and recommended that they be incorporated. At the end of 2015, the German Freight Forwarding and Logistics Association followed suit and presented its own terms and conditions, resulting in the ADSp 2016. After a rapprochement between the parties in 2016, the ADSp 2017 was again recommended for joint application on 1 January 2017. However, the previous versions (ADSp 2003 and ADSp 2016) could still be used.
The terms and conditions under which forwarding companies provide their services should be clearly communicated to customers. This is required by law, under which customers must be informed "in a suitable manner" if a party wishes to deviate from the statutory basic liability set out in the general terms and conditions. However, it remains unclear as to what constitutes a 'suitable manner'. Further, there are no universally applied clauses and a simple reference to the most recent ADSp is no longer sufficient.
In general, the year of the version on which the terms and conditions are based must be stated. For instance, a clearly worded reference to the ADSp 2017 might read as follows:
We work exclusively on the basis of the ADSp 2017. Please note that the ADSp 2017 contains liability regulations which may deviate from the statutory standard regulation. We refer in particular to Sections 22-25 ADSp 2017. At the same time, it is clarified that set-off or retention against claims arising from the transport contract and related non-contractual claims is only permissible if the counterclaim due is undisputed or ready for decision or has been finally and conclusively adjudicated.
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@example.com). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.
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