After delivery of the shipment, the subcontractor is usually entitled to freight even if he cannot present original freight documents. This has been ruled by the Higher Regional Court of Celle (case reference 11 U 280/05). This puts a stop to previous practices of refusing payment and strengthens the legal position of the sub-carriers.
A typical case: a sender commissions a transport company to carry out a shipment. The transport company does not carry out the order itself, but instead commissions a sub-carrier. The sub-carrier delivers the shipment to the recipient undamaged. The carrier receives the invoice from the sub-carrier but does not pay. His reason: he has not yet received the original freight documents. Only then does the freight become due.
The sub-carrier then reads the small print at the bottom of the order or confirmation letter and discovers a clause that could read as follows: "Payment term: 45 days after receipt of the invoice together with the complete original freight documents (consignment note, delivery note, pallet note, etc.)."
However, the subcontracted carrier often has the required documents, contrary to the statements of the carrier, but cannot prove it. Or for other reasons, he can only present copies. It is not uncommon for the carrier to get away with his objection and avoid payment.
Clause not objectionable. A clause according to which maturity is to occur only after the original freight documents have been handed over is not objectionable from a legal point of view. This is because Section 449 of the German Commercial Code (HGB), according to which certain provisions of freight law cannot be waived at all or only under strict conditions, does not apply here. However, the question arises as to how the sub-carrier can enforce payment for its duly and verifiably provided services despite such a clause.
First of all, it must be determined whether the clause has actually become part of the contract, as otherwise it has no effect. In this context, the order confirmation, which regularly follows the verbal conclusion of the contract by fax, is of great importance: if a contracting party receives a letter of confirmation that sets out in writing a contract that has been informally concluded in advance, it must object to it if it does not want to be bound by its contents. In these cases, silence means that the contract exists with the content of the letter of confirmation.
The only exception to this is if the confirmation is so far removed from the actual outcome of the negotiations that the party providing the confirmation could not reasonably expect the other party to agree. Or if a new condition is listed with the confirmation that the recipient does not have to expect and that is surprising.
However, since the clause in question is frequently encountered in the transport industry, it will not be possible to qualify it as "surprising". The clause can therefore be effectively agreed if it appears in the confirmation letter and the other party does not object to its inclusion.
Not freightless and powerless. Assuming that the clause has become part of the contract, this does not mean that the sub-freight forwarder without originals is without freight and powerless. The Higher Regional Court of Celle (case reference 11 U 280/05) has therefore ruled: Insofar as the party owing the freight claim can have an interest in being handed the original freight documents in order to assert rights against third parties (for example, his claim for payment against the original sender) are justified and the handover of the original documents is a prerequisite for the payment claim to become due. However, if the debtor cannot prove a reasonable interest in the originals, or in extreme cases has even already received payment from the sender, he may not invoke the clause. The freight claim is then due even without presentation of the original documents.
The district court of Winsen/Luhe has also endorsed the judgment of the Higher Regional Court of Celle (case reference 23 C 495/08). This means that other courts are also likely to rule in favor of the lower-level carrier in such cases.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.