cases

There are few people in the (Dutch) logistics sector that have not encountered them: the conditions of the Netherlands Association for Forwarding and Logistics (‘FENEX’). After roughly fourteen years the FENEX board decided it was time for a new draft of their general terms and conditions for freight forwarders. Although the changes might not be incredibly shocking, the omnipresence of the Dutch Forwarding Conditions makes it important to be aware of the changes.

Firstly a lot has changed regarding the structure of the conditions. An article containing definitions has been added, the headings have been altered, and several articles have had the wording altered. More than in the former conditions the freight forwarder is instructed to, when possible, consult with the client, which could arguably decrease the number of problems that may arise between client and freight forwarder.

Newly added is article 3 of the Dutch Forwarding Conditions, which provides – inter alia - that the freight forwarder has the right to enter into a contract with third parties in the execution of the contract with the client, and to accept the (general) terms and conditions of the third party at the expense and risk of the client.

The article about customs work of the freight forwarder has been updated to include two new sections. The freight forwarder now has the right to cease all customs work in case it is discovered that incorrect or incomplete data was provided, and the freight forwarder would not have accepted the assignment on the basis of the correct data.

It is also important to make note of the changes in the liability clause of the Dutch Forwarding Conditions. The most striking change is the removal of the limitation of SDR 4,000 per shipment, which means that only the general limit of SDR 10,000 remains. Furthermore the new liability clause explicitly states for which damages and costs the client is liable.

According to the newly added article 18 of the Dutch Forwarding Conditions the freight forwarder has the right to, in certain cases, terminate the contract with immediate effect, for example when the client is declared bankrupt. Both the client and freight forwarder can under certain circumstances terminate the contract if the other party fails to meet their contractual obligations.

The extent to which the new and altered articles will be upheld in court, will depend on the specific case and the interpretation of the provisions by the judge or arbiter.

The new Dutch Forwarding Conditions will be deposited on 1 May 2018. The current version of the conditions of 1 July 2004 will be revoked per 1 May 2018. Dutch freight forwarders then have the important task of ensuring that the conditions are properly declared applicable to their freight forwarding services.

In that sense freight forwarders should be aware that the applicability of the Dutch Forwarding Conditions could be dependent on the content of the underlying contract. In an earlier newsletter our colleague Hans Flameling authored an article about a court case before the Court of Rotterdam wherein the court deemed the Dutch Forwarding Conditions to not be applicable because instead of freight forwarding services transport services were provided.

Richard Latten / Bas Neureiter di Torrero