What is transportation and freight

Introduction to freight law - basic concepts of freight law

Basic concepts of freight law

1. The carrier

The carrier is the person who, based on a freight contract, is obliged to transport the goods to the destination and deliver them there to the recipient (see Section 407 of the German Commercial Code). The transport of the cargo must be part of the operation of a commercial enterprise.

The sender has a contract with the recipient (e.g. a sales contract) and a freight contract with the carrier. After handing over the freight, the carrier is obliged to deliver the goods to the recipient.

2. The subcontractor

A sub-carrier undertakes to a carrier (main carrier), who in turn is obliged to carry out the transport. The main carrier has concluded a freight contract with the sub-carrier within the meaning of Section 407 (2) of the German Commercial Code (HGB).

Note:

Each contract between the parties is independent, which means that contracts are created between the respective senders and carriers.

Caution: According to § 437 HGB, the sub-carrier is liable in the same way as the carrier.

3. The executing carrier

The executing carrier is the one who carries out the transport to the recipient.

4. People (in the sense of the freight business)

People are employees in the carrier's company.

5. The sender

As can already be seen from the diagram above, the sender concludes a freight contract with the carrier (cf. § 407 HGB). This contract obliges the carrier to transport the goods and the sender to pay for the agreed freight. The sender does not have to run a business. A carrier can also be the sender. In this way, a contract with a sub-carrier comes into being. A chain of hauliers is created.

6. The recipient

The recipient has a contract (e.g. sales contract) with the sender. This instructs the carrier to deliver the goods to the recipient. The freight contract is not concluded between the recipient and the sender or carrier. Consequently, he has no obligations based on the freight contract between the sender and the carrier. The recipient is only benefited, since a freight contract is a real contract in favor of a third party.

The recipient does not have to be named when the freight contract is concluded. IT is sufficient if the recipient is known at the latest upon delivery. When using a consignment note, the recipient authorization can be derived from this document. An unauthorized person will not become the recipient even if the freight is inadvertently delivered to him.

7. The transport (transport & delivery)

Transport is understood to be the acceptance of the cargo in the care of the carrier. He is obliged to transport the goods safely and undamaged and to deliver them to the recipient. The transport route is irrelevant (e.g. transport with a crane).

8. The good

Every physical object in the sense of § 90 BGB (thing) is to be understood as good. This also includes the means of transport such as containers, pallets, etc. In the case of dangerous goods, Section 410 HGB must be observed. There are also special regulations for removal goods (§ 451 HGB) and luggage.

9. The care

By accepting the goods, the carrier takes responsibility for the goods until they are delivered to the recipient. In the event of damage occurring during this period, the carrier is liable regardless of fault in accordance with Section 425 of the German Commercial Code. Due to the responsibility, the carrier has the duty to protect the goods from damage (e.g. weather, theft, etc.). The requirements for the duty of care are quite high by the case law.

Example: A freight carrier violates his duty of care if he parks the truck with freight overnight in a parking lot (unguarded) in a country at risk of theft without a second driver.

10. The right to give instructions

In accordance with Section 418 of the German Commercial Code (HGB), the carrier is obliged to follow the sender's instructions. The carrier does not have to follow instructions that go beyond this.

The sender's right of disposal expires after the goods arrive at the delivery point (cf. § 418 Paragraph 2 HGB). The recipient now has the right of disposal. If the recipient makes use of his right of disposal, he must pay the carrier appropriate remuneration.


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Status: 10/12


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About the authors:

Harald Brennecke, attorney, specialist attorney for intellectual property law

Attorney Harald Brennecke works as a criminal defense lawyer in data protection law.

Lawyer Brennecke has published on data protection law:

  • "17 UWG - trade secrets and betrayal by (former) employees", 2015, Verlag Mittelstand und Recht, ISBN 978-3-939384-38-0
  • "Introduction to data protection law", chapter in the e-business manual for decision-makers, 2nd edition, ISBN 3.540-43263-9, 2002, Springer-Verlag

The following publication by lawyer Brennecke is in preparation:

  • Introduction to data protection criminal law

Lawyer Brennecke worked as a lecturer for data protection law at the IHK Karlsruhe. He is a lecturer in data protection law at the DMA Deutsche Mittelstandsakademie.

It offers training courses, lectures and seminars on the following topics:

  • Protection of customer addresses and trade secrets - 17 UWG in theory and practice
  • Data protection criminal law
  • Data protection in franchise systems - the underestimated danger for franchise systems

Contact attorney Harald Brennecke at:
Mail: [email protected]
Phone: 0721-20396-28

 

Standards: § 407 HGB; § 437 HGB; § 90 BGB; § 451 HGB, § 425 HGB; Section 418 of the German Commercial Code

We ask for your understanding that we cannot provide legal advice free of charge.