Reimbursement of expenses, ADSp and HGB at the interface between shipper, freight forwarder and shipping company
Often, the demurrage charge is not charged to the shipper directly by the shipping company, but rather as a pass-through charge from the freight forwarder. Whether this charge is justified depends on the legal basis for the claim and who is responsible for the delay. Rogert & Ulbrich reviews these pass-through charges and enforces your objections and claims for recourse.
The starting point: The freight forwarder pays, the shipper is supposed to reimburse.
The typical process begins with the shipping company. They invoice the freight forwarder who made the booking for demurrage or detention. To release the container and avoid further costs or a block on future bookings, the freight forwarder often pays initially.
He then invoices his client for the amount, usually with a brief mention of incurred demurrage charges. The shipper then faces the question of whether he has to accept this invoice. In any case, you don't have to accept a flat-rate charge without proof without scrutiny.
An overview of our consulting services transport and forwarding law You can find it on our service page.
Have you received a charge for demurrage? First, request the original invoice from the shipping company and a statement of the legal basis for the claim.
Two levels of contract, two legal systems
The crucial error in practice lies in treating the onward charging as a single claim. In reality, two separate legal relationships are involved, each governed by different rules.
- Shipping company and freight forwarder: This level is based on the shipping company's terms and conditions of carriage and is often subject to foreign law with a foreign court of jurisdiction.
- Freight forwarder and client: This level is regularly governed by German law, i.e., by the forwarding contract, the ADSp and §§ 453 ff. HGB.
This leads to an important consequence: Even if the shipping company has successfully enforced its claim against the freight forwarder, this does not automatically mean that the freight forwarder is allowed to pass it on to you. Both levels must be examined separately. We clarify whether the shipping company clause is even valid in our article on when shipping companies' demurrage clauses are ineffective.
Unclear at which level your claim originated? Have both contractual relationships reviewed separately.
Reimbursement of expenses according to ADSp and HGB – the requirements
The most practically important legal basis for a freight forwarder's claim is reimbursement of expenses. If the ADSp 2017 (German Freight Forwarders' Standard Terms and Conditions) are effectively incorporated, the forwarder can, according to clause 17 thereof, demand reimbursement of necessary expenses that he could reasonably consider necessary under the circumstances and for which he is not responsible. Demurrage and detention costs are also explicitly mentioned there.
This brings one question into sharp focus: Is the freight forwarder responsible for the delay? The DSLV (German Association for Freight Forwarding and Logistics) maintains that fault is the sole determining factor, not merely whether the delay falls within the freight forwarder's sphere of risk. Some courts interpret the clause more narrowly, denying a claim for reimbursement even if the cause falls within the freight forwarder's risk area, such as delays in its terminal operations. For you as the shipper, this is good news, as it means the onward charging remains contestable.
Editorial note: Check the applicable version of the ADSp and the current state of case law on the interpretation of clause 17 ADSp 2017 before publication.
Is your freight forwarder claiming reimbursement of expenses? Have it checked whether the German Freight Forwarders' Standard Terms and Conditions (ADSp) apply and whether they are responsible for the delay.
Demurrage according to § 412 HGB is not the same as container demurrage
The statutory demurrage is often cited as justification. Accuracy is required here, as Section 412 of the German Commercial Code (HGB) addresses a different situation than the shipping company's demurrage. According to Section 412 Paragraph 3 HGB, the carrier is entitled to reasonable compensation if, due to a contractual agreement or for reasons beyond its sphere of risk, it has to wait beyond the loading or unloading time.
This standard therefore addresses the carrier's waiting time during loading and unloading, for example, when a truck is waiting at the loading dock. According to Section 412 Paragraph 2 of the German Commercial Code (HGB), no special compensation can be claimed for the loading and unloading time itself. The shipping company's container demurrage, on the other hand, is based on its terms and conditions of carriage. Anyone conflating these two claims is missing the point.
It is also noteworthy that, according to the Federal Court of Justice, the statutory right to demurrage cannot be excluded by the client's general terms and conditions. Here, too, a close examination of the specific legal basis invoked is worthwhile.
Editorial note: Verify and supplement the source for the Federal Court of Justice (BGH) decision concerning the exclusion of demurrage claims by general terms and conditions before publication.
Are you being charged statutory demurrage? Have it checked whether the applicable regulation even applies to your case.
Your objections as a shipper
As the client, you are not defenseless against being charged on. Several objections are regularly possible, and these can be combined:
- Lack of legal basis for the claim: Check whether an individual agreement exists and whether the ADSp (German Freight Forwarders' Standard Terms and Conditions) have been effectively incorporated into the contract.
- Fault of the freight forwarder: If the delay is due to a breach of duty by the freight forwarder, for example regarding documents or customs declarations, a claim for compensation is generally excluded.
- Missing evidence: Request the original invoice from the shipping company, the fare schedule, and the timeline. Without proof of actual expenses, the claim is not valid.
- Ineffective basic claim: If the shipping company's clause is invalid or the demurrage is excessive, the payment may not have been necessary.
- Damage mitigation: Check whether the freight forwarder has failed to take reasonable measures to reduce costs.
- Statute of limitations: Claims for reimbursement of expenses are subject to short deadlines and may already be time-barred.
These objections must be raised in writing and with sufficient detail, not simply by remaining silent. Making an unconditional payment, on the other hand, can significantly weaken your position. Often, the claim can be substantially reduced out of court.
Do you believe the additional charge is unjustified? Raise your objections in a qualified manner before you pay.
Recourse and practical guidelines
If the freight forwarder contributed to the delay, you can not only defend against the claim but also file your own claim against them. The following steps outline the procedure:
- Request documents: Request the original invoice from the shipping company, the applicable tariff, and a list of the days.
- Determine the cause: Reconstruct whether customs, the terminal, documents, or the freight forwarder itself caused the delay.
- Check the legal basis for the claim: Clarify whether an agreement, the ADSp (German Freight Forwarders' Standard Terms and Conditions) or the HGB (German Commercial Code) covers the pass-through charge.
- Raise objections: Submit your objection in writing and state the specific reasons.
- Examine recourse: In the event of a breach of duty by the freight forwarder, claims for damages may be considered, although limitations of liability must be observed.
- Meet deadlines: Secure your claims in time to avoid them becoming time-barred.
The extent of the freight forwarder's liability in a given case can also depend on the nature of the services undertaken. We have the following information on this topic: Unlimited liability for Value Added Services shown separately.
Do you want to seek recourse? Have your claims reviewed while the deadlines are still open.
Rogert & Ulbrich – Your lawyers in transport and forwarding law
Rogert & Ulbrich advises shippers, importers, and freight forwarders at the intersection of pass-through charges and recourse in cases of demurrage and detention. The lawyers Dr. Marco Rogert and Tobias Ulbrich and their multilingual team are familiar with the ADSp, the shipping company tariffs and the relevant case law from daily practice.
We examine the legal basis for the chargeback, clarify the cause of the delay, raise your objections, and enforce claims for compensation. For cross-border road transport, we take the following into account: CMR Convention, about our Dutch Desk also the Dutch legal situation regarding traffic via Rotterdam and Antwerp.
Whether it's a disputed freight forwarder invoice, missing proof, or recourse: Arrange a initial consultation and secure your position.
