It happens often in the practice of our Office that our Client is convinced that he or she has concluded a forwarding contract but this conviction is not always correct. In particular, the use of other firms while performing the order is not a sufficient condition to recognise oneself as a forwarder.
Whether a contract is a contract of carriage or a forwarding contract is of crucial importance. First of all, the liability for irregularities in carriage is different in both situations. Within the scope of Polish law, the forwarder is liable for the fault in choosing and therefore if he chose the carrier with due diligence, he is not liable for the carrier’s actions or default. By contrast, an international carrier employing a subcontractor will always be liable for their actions or default as for their own. In terms of the amount of compensation, with respect to a forwarding contract, the amount of compensation corresponds to the ordinary value of the goods. On the other hand, an international carrier by road may refer to the compensation limits laid down in the CMR Convention which are related to the weight of the goods (I have discussed this issue in detail in my previous article). If the forwarder performs the carriage himself, he has all the rights and obligations of a carrier.
The type of the contract – whether it is a contract for carriage or a forwarding contract – is determined, unfortunately, not by its title but most of all by its character (the obligations of the parties).
As the Regional Court in Szczecin showed in its verdict of 8 March 2013, file number VIII Ga 31/13, the essence of a forwarding contract is not the performance of a contract but only its organisation, including sending and receiving the goods, and performing other actions connected to the carriage. Such services are, therefore, professional assistance in handling the carriage (see the judgement of the Supreme Court of 18 January 1973, I CR 566/70, OSNC 1971/9/157).
The following questions may prove helpful when establishing if we deal with carriage or with forwarding:
Is the order limited to performing the carriage or does the scope of duties also include additional activities beyond the carriage and which could be recognised as forwarding services?
Has the transport order referred to the provisions of the CMR Convention?
Has one of the parties expressly stated when concluding the contract that they are forwarders and not carriers (when the order covers the carriage of goods and not the conclusion of a contract with another party)?
Has the payment been established in the form of freight or have there been any other components of the remuneration for performing the forwarding activities?
In case it is established that the concluded contracts are in fact contracts for carriage and not forwarding contracts, it is advisable to ensure one has carrier’s liability insurance, as the forwarder’s liability insurance does not fully protect the interest of the firm.