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18 September 2019
The Freight Forwarders' Standard Terms and Conditions (ADSp) are general terms of service recommended by several trade associations. The recommendations are non-binding and contracting parties can make agreements that deviate from the ADSp. The ADSp 2016 and ADSp 2017 are the most commonly used and have minor differences.
Section 30.3 of the ADSp 2016 contains the following exclusive clause on place of jurisdiction with regard to legal disputes against freight forwarders: "claims against the Freight Forwarder are exclusively covered by his place of jurisdiction". However, this phrase is no longer included in the ADSp 2017.
This raises the question of whether, in addition to the place of jurisdiction references in Section 30.3 of the ADSp 2017, the place of jurisdiction rules set out in Section 30(1) of the Code of Civil Procedure also apply. Section 30(1) stipulates that for legal disputes arising from the carriage of goods, the courts are also competent in the jurisdiction where the goods were received for carriage or are intended to be delivered.
The Dresden Higher Regional Court addressed this question in a non-published decision (3 AR 47/19) of 12 August 2019.
The plaintiff, a cargo insurer, claimed damages from the defendant, a freight forwarder based in Ibbenbühren. The insured had commissioned the defendant to transport a large glass aquarium to the consignee near Görlitz. The aquarium had reportedly been damaged in the defendant's custody. The plaintiff brought an action against the defendant before a local court (the Görlitz Court). The defendant complained about the local court's place of jurisdiction, so the Görlitz Court referred the matter to another local court (the Ibbenbühren Court). The Ibbenbühren Court refused to take on the case and referred it back to the Görlitz Court, which referred the case to the Dresden Higher Regional Court to determine the place of jurisdiction.
The Dresden Higher Regional Court ruled that the Görlitz Court was competent to deal with the case and not the court at the freight forwarder's place of jurisdiction.
In principle, the court to which the case was first referred has jurisdiction. However, the binding effect ceases if the referral decision is to be regarded as arbitrary. The Dresden Higher Regional Court ruled that the Görlitz Court's referral decision should be regarded as arbitrary and incomprehensible. There are special circumstances which go beyond the mere oversight of a rule of jurisdiction or a legal error with regard to the scope of rule's application.
While the Görlitz Court had not considered the place of jurisdiction as set out in Section 30(1) of the Code of Civil Procedure, the plaintiff had expressly referred to the place of jurisdiction at which the goods were intended to be delivered. The Görlitz Court had assumed an exclusive agreement on the place of jurisdiction because the ADSp 2017 had become part of the freight forwarding contract; however, it did not consider whether Section 30.3 of the ADSP 2017 contains an exclusive or additional agreement on the place of jurisdiction, despite the fact that the plaintiff had explained in detail that Section 30.3 of the ADSp 2017 – in contrast to Section 30.3 of the ADSp 2016 – provides for an additional place of jurisdiction.
The Dresden Higher Regional Court held that, as the sentence "claims against the Freight Forwarder are exclusively covered by his place of jurisdiction" contained in Section 30.3 of the ADSp 2016 is no longer included in the 2017 version, the jurisdiction of the court at the place designated for the delivery of the goods (Section 30 of the Code of Civil Procedure) is no longer waived; however, Section 30.3 of the ADSp 2017 establishes jurisdiction of the courts at the place where the freight forwarder or the principal is established.
The Dresden Higher Regional Court's ruling that the ADSp 2017 provides for an additional place of jurisdiction is welcomed. However, to date, there has been no court decision on the amended Section 30.3 of the ADSp 2017 and the few available relevant sources in German jurisprudence are ambiguous (for further details please see "ADSp 2003, 2016 or 2017 – which version is valid?" and "Gap closed – no further risk for forwarders").
For further information on this topic please contact Marco G Remiorz or Felix Goebel at Arnecke Sibeth Dabelstein by telephone (+49 40 31 779 70) or email (firstname.lastname@example.org or email@example.com). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.
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