Dutch shipping conditions
GENERAL TERMS AND CONDITIONS OF FENEX
© Copyright FENEX, 2004 1-9 These conditions may not be reproduced, stored in a database or made public in any form without prior written permission from FENEX.
GENERAL CONDITIONS OF FENEX (Dutch Organisation for Forwarding and Logistics)
filed at the Registry of the District Courts in Amsterdam, Arnhem, Breda and Rotterdam on 1 July 2004
1. These general terms and conditions apply to every form of service that the forwarder provides. Forwarder in the context of these terms and conditions does not exclusively mean the forwarder as referred to in Book 8 of the Dutch Civil Code. The client of the forwarder is considered to be the person who gives the order for the performance of operations and work to the forwarder, regardless of the agreed method of payment.
2. With regard to the acts and activities, such as those of shipbrokers, stevedores, carriers, insurance brokers, storage and inspection companies, etc., carried out by the forwarder, the conditions customary in the industry concerned or conditions of which the applicability is stipulated shall also apply.
3. The forwarder is at all times entitled to declare provisions applicable from the conditions of third parties with whom it has concluded agreements for the performance of the given order.
4. The forwarder has the right to have the performance of the order and/or related work carried out by third parties or with third-party employees. Insofar as those third parties, or their employees, are legally liable vis-à-vis the forwarder's client, it is stipulated on their behalf that they will be considered to be employed exclusively by the forwarder in the work for which the forwarder uses them. With regard to them, all clauses concerning exclusion and limitation of liability, as well as concerning indemnification of the forwarder, as described in these terms and conditions shall apply.
5. Orders for cash on delivery, banker's draft, etc. are deemed to be forwarding operations.
Conclusion of the Agreement
1. All offers made by the forwarder are without obligation.
2. All offered and agreed prices are based on the rates, wages, costs of social measures and/or laws, freight and exchange rates that apply at the time of the offer or the conclusion of the agreement.
3. In the event of a change in one or more of these factors, the prices offered or agreed will also be changed with retroactive effect and up to the time of change.
The forwarder must be able to prove the changes. © Copyright FENEX, 2004 2-9 These conditions may not be reproduced, stored in a database or made public in any form without prior written permission from FENEX.
1. If the forwarder charges all-in or fixed rates, these tariffs must be considered to include all costs that are generally borne by the forwarder in the normal course of the order.
2. Unless stipulated to the contrary, all-in or fixed rates do not include duties, taxes and levies, consulate and legalisation costs, costs for drawing up bank guarantees and insurance premiums.
3. Additional compensation - to be determined in fairness - may be charged for special performance, unusual, time-consuming or effort-intensive work.
1. In the event of insufficient loading and/or unloading time - regardless of the cause thereof - all resulting costs, such as transfer fees, etc. will be borne by the client, even when the forwarder has accepted the bill of lading and/or the charter party, from which the additional costs arise, without protest.
2. Extraordinary costs and higher wages, which arise when transport companies, pursuant to any provision in the relevant transport documents, proceed to load or unload during the evening, at night, on Saturdays or on Sundays or public holidays, are not included in the agreed prices unless this is agreed has been negotiated separately. Such costs must, therefore, be reimbursed by the client to the forwarder.
1. Insurance of any kind will only be provided at the expense and risk of the client on an express written order. The risks to be insured must be clearly stated. Declaration of value alone is not sufficient.
2. If the forwarder has taken out insurance in its own name, it is only obliged - if requested - to transfer its claims against the insurer to the client.
3. The forwarder is not responsible for the choice of the insurer and its credit.
4. If the forwarder uses trestles and similar tools in the performance of the order, it is entitled to take out insurance that covers the risks that the forwarder may derive from the use of these tools at the client's expense.
1. Providing the forwarder with the information required for customs formalities shall include instructions to that effect unless otherwise agreed in writing.
© Copyright FENEX, 2004 3-9 These conditions may not be reproduced, stored in a database or made public in any form without prior written permission from FENEX.
Performance of the Agreement
1. If the client has not given any specific regulations in this regard in its order, the method of dispatch and the route are at the discretion of the forwarder, whereby the forwarder may at all times accept the customary documents from the companies with which it carries out the given agreement.
1. The client is obliged to ensure that the goods are available at the agreed place and time.
2. The client is obliged to ensure that both the documents required for receipt and dispatch, as well as for instructions, are in the possession of the forwarder in time.
3. The forwarder is not obliged but is entitled to investigate whether the statements are correct and complete.
4. The forwarder is not obliged to receive a guarantee in the absence of documents. If the forwarder provides a guarantee, its client is obliged to indemnify it against all consequences thereof.
1. All manipulations such as checking, sampling, taring, counting, weighing, measuring etc. and receiving under judicial expertise shall only be carried out on the explicit instruction of the client and in return for reimbursement of costs.
2. Nevertheless, the forwarder is entitled, but not obliged, to take all measures which he deems necessary in the interest of the latter on its own authority, at the expense and risk of the client.
3. The forwarder does not act as an expert. No liability arises for it from statements of the condition, nature or quality of the goods; nor does it assume any liability with regard to the conformity of samples with the batch.
1. The addition "approximately" allows the client to deliver 2.5% more or less.
1. All actions and activities are at the expense and risk of the client.
2. The forwarder is - without prejudice to the provisions of Article 16 - not liable for any damage, unless the client proves that the damage was caused by the fault or negligence of the forwarder or its subordinates.
© Copyright FENEX, 2004 4-9 These conditions may not be reproduced, stored in a database or made public in any form without prior written permission from FENEX.
3. The liability of the forwarder is in all cases limited to 10,000 SDR per event or series of events with one and the same cause of damage, on the understanding that in the event of damage, depreciation or loss of the items included in the order, the liability will be limited to 4 SDR per kg of damaged or lost gross weight with a maximum of 4,000 SDR per shipment.
4. The damage to be compensated by the forwarder will never amount to more than the invoice value of the goods to be proven by the client, in the absence of which the market value to be proven by the client will apply at the time the damage occurred. The forwarder is not liable for lost profit, consequential damage and immaterial damage.
5. If during the performance of the order damage occurs for which the forwarder is not liable, the forwarder must make an effort to recover the damage from the client from the person who is liable for the damage. The forwarder is entitled to charge the client for the costs incurred. Upon request, the forwarder transfers the claims to the third parties engaged by it for the performance of the order to the client.
6. The client is liable vis-à-vis the forwarder for damage as a result of the (nature of the) goods and the packaging thereof, inaccuracy or incompleteness of instructions and data, non-availability or late availability of the goods at the agreed time and location, as well as the failure to provide documents and/or instructions and the fault or negligence in general of the client and his subordinates and third parties engaged and/or employed by it in general.
7. The client shall indemnify the forwarder against claims from third parties, including subordinates of both the forwarder and the client, that are related to the damage referred to in the previous paragraph.
8. Even if all-in or fixed rates have been agreed, the forwarder, who does not carry out the transport, is not liable as a carrier, but liable according to these conditions.
1. Force majeure applies to all circumstances that the forwarder could not reasonably have avoided and the consequences of which the forwarder could not reasonably have prevented.
1. In the event of force majeure, the agreement remains in force, but the obligations of the forwarder are suspended for the duration of the force majeure.
2. All extra costs caused by force majeure, such as transport and storage costs, warehouse or site rental, demurrage and standing charges, insurance, results etc., will be borne by the client and must be paid to the forwarder upon first request.
1. Mention by the client of time of delivery does not bind the forwarder.
2. Times of arrival is not guaranteed by the forwarder unless agreed otherwise in writing.
© Copyright FENEX, 2004 5-9 These conditions may not be reproduced, stored in a database or made public in any form without prior written permission from FENEX.
1. If carriers refuse to sign for piece number, weight, etc., the forwarder is not responsible for the consequences thereof.
1. If the goods are not delivered to their destination without delay in the state in which they were made available, the forwarder, insofar as it carried out a transport agreement that it would conclude with another person, is obliged to do so without delay to the client who informed the forwarder of the damage.
2. If the forwarder does not make the notification referred to in the first paragraph, and if it is not subsequently called in as a carrier as a result, in addition to compensation for the damage that the client otherwise suffered as a result, it shall owe indemnification equal to the compensation, which it would have had to pay if it had been approached in time as a carrier.
3. If the goods are not delivered to their destination without delay in the state in which they were made available, the forwarder, insofar as it did not carry out the transport agreement that it would conclude with another person, is obliged to notify the client of which transport agreements it entered into in order to fulfil its commitment without delay. It is also obliged to make available to the client all documents that are at its disposal or that it can reasonably provide, insofar as these documents can at least serve to recover the damage incurred.
4. From the moment when the forwarder clearly communicates to the forwarder that it wants to exercise them, the client acquires the rights and powers that it would have received if it had concluded an agreement as the consignor. It may take legal action in this regard if it submits a statement to be issued by the forwarder - or in the event of its bankruptcy by its curator - that an agreement was made between it and the forwarder with regard to the goods to have the goods transported.
5. If the forwarder fails to comply with an obligation as referred to in the third paragraph, it shall, in addition to compensation for the damage that the client otherwise suffered as a result, owe compensation equal to the compensation that the client could have received from it if it had performed the agreement that it concluded, minus the compensation that the client may have received from the carrier.
1. The client is obliged to pay the forwarder the agreed fee and the other costs, freight, rights, etc. arising from the agreement and/or these conditions upon arrival of goods received or when goods are shipped. The risk of price fluctuations is borne by the client.
The agreed compensation and other costs, freight, rights, etc. arising from the agreement and/or these conditions are also due if damage has occurred during the performance of the agreement. © Copyright FENEX, 2004 6-9 These conditions may not be reproduced, stored in a database or made public in any form without prior written permission from FENEX.
2. If, in derogation from paragraph 1 of this article, a credit term is applied by the forwarder, the forwarder is entitled to charge a credit limitation surcharge.
3. If the client does not pay the amount due immediately after invoicing or after the applied credit period, the forwarder is entitled to charge the statutory interest in accordance with articles 6:119 or 6:119a of the Dutch Civil Code.
4. In the event of termination or dissolution of the agreement, all claims - including future ones - of the forwarder shall become immediately due and payable in full. In any case, all claims will be immediately due and payable in full if:
– the bankruptcy of the client is exposed, the client has applied for suspension of payment or loses the free disposal of his equity capital;
– the client offers an agreement to its creditors, is in default with the fulfilment of any financial obligation towards the forwarder, ceases to conduct his business or - in the case of a legal entity or company – in case it is dissolved.
5. The client is obliged by virtue of the forwarding agreement to provide security at the first claim of the forwarder for what the client owes the forwarder. This obligation also exists if the client has already had to provide security in connection with the owed amount.
6. The forwarder is not obliged to provide security from its own resources for payment of freight, duties, levies, taxes and/or other costs, should this be required. All consequences of not or not immediately meeting an obligation to provide security will be borne by the client.
If the forwarder has provided security from its own resources, it is entitled to demand immediate payment of the amount for which security has been provided from the client.
7. The client is at all times obliged to reimburse any amounts to be claimed in connection with the order to be collected by any government as well as related imposed fines to the forwarder.
The client must also compensate the aforementioned amounts to the forwarder if the forwarder in connection with the forwarding agreement is approached by a third party engaged by it.
8. The client shall at all times reimburse the forwarder for the amounts that are claimed or reclaimed from the forwarder in connection with the order as a result of incorrectly charged freight and costs.
9. The client is not entitled to apply set-off for amounts that the forwarder charges the client under an agreement between them.
1. Pay-as-you-go payments are deemed to have been made primarily against deductible claims, irrespective of whether other instructions have been provided with the payment.
2. If, in the event of late payment, the collection is made by judicial or other means, the amount of the claim is increased by 10% administration costs, while the judicial and extrajudicial costs are borne by the client up to the amount paid or due by the forwarder.
© Copyright FENEX, 2004 7-9 These conditions may not be reproduced, stored in a database or made public in any form without prior written permission from FENEX.
1. The forwarder shall have a pledge and a right of retention against any person who requires delivery thereof, of all items, documents and monies which the forwarder has or will receive for any reason and for any purpose, for all claims it has or may have against the client or owner. When forwarding the goods, the forwarder is entitled to check the amount owed thereon or to draw a bill of exchange for this with attached shipping documents.
2. The forwarder may also exercise the rights granted to it in paragraph 1 for what the client still owes it in connection with previous orders.
3. The forwarder is entitled to also exercise the rights granted to it in paragraph 1 for what is cashed on the item.
4. In the event of non-payment of the claim, the sale of the collateral will take place in the manner determined by law or - if there is agreement on this - by private means.
1. Legal and arbitration proceedings against third parties are not conducted by the forwarder unless it declares itself willing to do so at the request of the client and at the client's expense and risk.
1. Without prejudice to the provisions of paragraph 5 of this article, any claim shall be barred by the mere lapse of nine months.
2. Any claim against the forwarder expires by the mere lapse of 18 months.
3. The periods referred to in paragraphs 1 and 2 shall commence on the day following that on which the claim has become due or on the day following that on which the injured party became aware of the damage. Without prejudice to the above provisions, the aforementioned periods for claims relating to damage, depreciation or loss of the goods commence on the day following that of delivery. The day of delivery is taken to mean; the day on which the goods were delivered from the means of transport, or, if they had not been delivered, should have been delivered.
4. In the event that the forwarder is called upon by any government or third parties as referred to in Article 17, paragraph 7, the period referred to in paragraph 1 shall commence from the first of the following days:
• the day following that on which the forwarder is government or the third party has been approached;
• the day following that on which the forwarder has settled the claim against it.
If the forwarder or a third party engaged by it as referred to in Article 17, paragraph 7, has lodged an objection and/or appeal, the period referred to in paragraph 1 shall commence on the day following that on which the decision on the objection and/or appeal is final.
© Copyright FENEX, 2004 8-9 These conditions may not be reproduced, stored in a database or made public in any form without prior written permission from FENEX.
5. Unless the situation referred to in paragraph 4 of this article occurs, if one of the parties is addressed after the period of limitation for what it owes to a third party, a new period of limitation of three months shall commence.
1. All agreements to which these conditions apply will be subject to Dutch law.
2. The place of business of the forwarder shall be the place of settlement and claims settlement.
1. All disputes that may arise between the forwarder and its counterparty, will be decided by three arbitrators to the exclusion of the ordinary court in the highest jurisdiction. A dispute is present when one of the parties declares that this is the case.
Without prejudice to the provisions of the previous paragraph, the forwarder is free to submit claims of claimable sums whose indebtedness has not been disputed by the counterparty in writing within four weeks of the invoice date, to the competent Dutch court at the forwarder's place of business. The forwarder is also free to submit claims of an urgent nature in summary proceedings to the competent Dutch court in the forwarder's place of business.
2. One of the arbitrators is appointed by the President or Vice-President of FENEX; the second is appointed by the Dean of the Bar Association of the district in which the aforementioned forwarder is established; the third is appointed by both arbitrators, so designated in mutual consultation.
3. The President of FENEX will appoint a person competent in the field of forwarding; the Dean of the Bar Association will be requested to appoint a lawyer; the third arbitrator should preferably be a person who is an expert in the trade or business, in which the counterparty of the forwarder is employed.
"4. The party requesting a decision on the dispute will notify the FENEX secretariat by registered letter or fax, with a brief description of the dispute and its claim, as well as the simultaneous sending of the decision by the board of the Amount of administration costs to be determined by FENEX, payable as compensation for the administrative efforts of FENEX in an arbitration.
A case is pending on the day of receipt at the FENEX secretariat of the aforementioned registered letter or fax.
5. Upon receipt of the aforementioned request for arbitration, the FENEX secretariat will confirm its receipt as soon as possible and send a copy thereof to the counterparty, to the President of FENEX, to the Dean of the Bar Association, for the latter two with the request to appoint one arbitrator and to inform the FENEX secretariat of the name and place of residence of the appointed.
Upon receipt of this notice, the FENEX secretariat will as soon as possible inform the two nominated parties of their appointment by sending a copy of the request for arbitration and a copy of these general terms and conditions, with the request to appoint the third arbitrator and inform the FENEX secretariat who has been appointed as such. © Copyright FENEX, 2004 9-9 These conditions may not be reproduced, stored in a database or made public in any form without prior written permission from FENEX.
After receiving this, the FENEX secretariat will as soon as possible inform the third arbitrator of its appointment with a copy of the request for arbitration and a copy of these general terms and conditions. The FENEX secretariat will then inform both parties who have been appointed arbitrators.
6. If the appointment of all three arbitrators has not been made within two months of the filing of the request for arbitration, all arbitrators shall, upon request of the most diligent party, be appointed by the President of the District Court within whose the forwarder is located.
7. The Chairman of the arbitrators shall be the person appointed by the Dean. If the appointment is made by the President of the District Court, the arbitrators mutually determine who will act as chairman. The place of arbitration is the place where the chairman of the arbitrators is established.
Arbitrators shall rule as fair men subject to compliance with the applicable mandatory provisions of fairness. Where applicable, they will also apply the provisions of international transport agreements, including the Convention on the agreement for the International Carriage of Goods by Road (CMR).
Arbitrators determine the manner in which the arbitration will be handled, on the understanding that the parties will in any case be given the opportunity to explain their position in writing and to explain it orally.
8. The instruction to arbitrators continues until the final decision. They will file their judgement at the Registry of the District Court in which district the place of the arbitration is located, while they will send copies of it to each of the parties and to the FENEX secretariat.
Arbitrators may require a deposit for arbitration fees from the claimant or from both parties in advance; they may require supplementation during treatment. If the deposit required by the claimant's arbitrators has not been deposited within three weeks of a request, that party will be deemed to have withdrawn the arbitration. Arbitrators will determine in their judgement which of the two parties or for which part each party will have to bear the arbitration costs. This includes the fees and disbursements of arbitrators, the amount of administration costs paid when applying to FENEX, as well as the costs incurred by parties, insofar as arbitrators deem it reasonably necessary. The amount due to the arbitrators will, as far as possible, be recovered from the deposit.
1. Deze algemene voorwaarden kunnen worden aangehaald als “Nederlandse Expeditievoorwaarden”.
FENEX, Dutch Organisation for Forwarding and Logistics Seattleweg 7, Gebouw 3, Havennummer 2801, 3195 ND Pernis-Rt PO Box 54200, 3008 JE Rotterdam