GENERAL CONDITIONS OF FORWARDING AND TRANSPORT
Chapter I – Generalities and Definitions
- Through its activity, TRANSGOR LOGISTIK plays a double role, functioning both as a freight forwarder and a carrier simultaneously.
- At international level, Transgor Logistik is a member of FIATA – International Federation of Freight Forwarders Association, and at the same time, internally, it is part of USER – Union of Forwarding Companies in Romania.
- By the meaning of freight forwarder (or freight forwarding company), under these general conditions, is to be understood any entrepreneur who – by order and on behalf of a customer- operates by providing transport services, meaning that he organizes freight transports without being the carrier himself.
In organizing the transport, in addition to the transport itself, related activities are also included, such as: storage of goods, customs duties (statements etc.), insurance and control of goods, enforcement of the collection of the amounts due to the principal (client).
- ustomer is any legal entity and/or individual, any holder who has the right of disposal on a certain quantity of goods and asks for a transport, including for the transport related operations.
The customer is who pays or guarantees the payment of the transport and of all its related operations.
- Organization of the transport is being done based on the terms and conditions of the shipment contract established between the customer and the freight forwarder.
- It is also considered as a concluded contract the client’s order to the freight forwarder, followed by its acceptance.
Order and its acceptance can be sent electronically by e-mail, fax, or by post.
The order must contain the necessary elements for identifying, organizing and carrying out the transport, as well as the related transport operations by the freight forwarder.
- The freight forwarder is not obliged to verify the accuracy of the documents provided by the customer (commercial invoice, specification lists etc.) which is responsible for the their compilation and correctness.
The customer is obliged to submit precise written instructions to the freight forwarder if special conditions for delivering the goods are being required.
The instructions are subject to the freight forwarder’s acceptance.
However, the instructions are considered to be accepted if, after receiving them, the freight forwarder decided to proceed with their implementation.
- In all cases when the freight forwarder is an USER member, the provisions of the shipment contract or of the order shall be considered as complemented by the provisions of these general conditions which are an integral part of the shipment contract and/or transport order, even if an express mention in this regard might be missing.
In the contracts concluded, the parties are free to expressly agree other clauses as well than those provided in these general conditions, which they can replace, modify or exclude, as the case may be.
Parties which are not members USER may agree by express mention the application of these general conditions in the contracts concluded with their customers.
Chapter II – Obligations of the Freight Forwarder
- The freight forwarder will make the necessary efforts to organize the transport and performing the related operations, according to the customer’s agreed instructions and to protect his interests as well during the entire execution of the transport.
- The freight forwarder should be organized and must have the necessary resources in order to perform its mission.
Unless otherwise agreed, the freight forwarder has the right to freely choose its sub-contractors as well as the ways of transport and the means used.
The responsibility for the proof of special instructions given to the freight forwarder lies with the customer.
The intermediaries or the sub-contractors to which the freight forwarder calls for the fulfillment of its obligations are considered accepted by the customer.
- In cases where the freight forwarder, as commissioner, concludes transport contracts in their own name but on behalf of customers, for the responsibility to them, for the damages incurred in carrying out the transport, for which the liability of the carrier is committed, the freight forwarder will not be held liable to the customer for more than the carrier owes.The shipment contracts concluded between the freight forwarder and the carriers, are subject to the International CMR Convention, signed in Geneva, Switzerland on May 19, 1956, to which Romania adhered by Decree no. 451 / November 1972, published in the Official Gazette, Part I on December 6, 1972 and by Government Emergency Ordinance no.27 / 2011 on road transport, amended by subsequent regulations.
Chapter III – Obligations of the Customer
- Goods must be delivered packaged, marked, labeled, so as to resist the transport and/or the related operations and to be delivered to the consignee according to the contract and the common practice.
- The freight forwarder is not liable for damages that could result from the absence, insufficiency or inadequacy of packaging, marking and/or labeling of the cargo and also from the lack of adequate information on the nature or the particular characteristics of the goods.
- In the event of finding loss, crashes or any damages to the cargo at destination, including those caused by delay in transport, the consignee or those who receive the goods are required to establish the damages and to fulfill the required formalities, including making legal objections towards the carrier, as well as to take other measures to ensure the preservation of the right of making complaints and taking actions for the recovery of damages.
- Whatever their nature, the customer bears the consequences resulted from providing incorrect documents, incomplete or inapplicable, or from providing them late.
- When in the name and interest of the customer, the freight forwarder undertakes customs operations, the customer is the one who guarantees to the customs agent the payment of customs duties and the fines that were due, determined by providing instructions or incorrect documents.
- In the event of rejecting the cargo by the recipient or in case of his absence for any reason, the customer is required to bear the initial and the additional costs as well incurred or engaged by the freight forwarder.
Chapter IV – Liability of the Freight Forwarder
- Whatever its intermediary status may be (concessionaire, trustee), the freight forwarder shall be liable only for damages caused by its own mistakes, which may be imputed to both herself and her representatives.
- The freight forwarder is not liable for the actions of third parties, such as its subcontractors (carrier, intermediary etc.), except in those cases where the freight forwarder could be charged with the mistake made in choosing them. In this last case, the freight forwarder’s liability cannot exceed the limits of the third party liability.
- If the freight forwarder’s liability is committed for damaging or losing the goods as a result of his own act, the amount of compensation due shall be established in relation to the normal value of the goods at the time of receipt.
- However, in those cases in which the freight forwarder’s liability is engaged under the terms of the above paragraph, that liability is strictly limited as following:
a) for the damages caused to the cargo by losing or crashing it and for any consequence which may result from that, the freight forwarder’s liability may not exceed the one provided by the carrier under the International CMR Convention (Art. 23.3), which is 8.33 DST (approx. 10 Euro) per KG of cargo;
b) for all other damages, including those resulting from the late delivery, when it’s the case, its liability is limited to the price of transport.
- The freight forwarder is not liable for indirect damage, whatever the causes that generated them.
- If an execution time of transport has not been expressly requested by the customer and accepted by the freight forwarder, it doesn’t guarantee a fixed date of arrival at destination and owe no compensation for delaying the transport.
Even if a deadline is being expressly agreed, the customer can claim compensation only after sending an official notification to the freight forwarder for that purpose.
- If the cargo’s value exceeds the limits of liability of the freight forwarder, the customer is free to choose one of the following measures:
a) in case of damage, to take the risk resulting from the difference between the liability of the freight forwarder and the cargo’s value;
b) at the conclusion of the contract, to make a statement of the cargo’s value which, if accepted by the freight forwarder, will raise its liability limit to the declared value; in such cases the corresponding price differences will be due;
c) to give instructions to the freight forwarder to conclude an insurance in his (customer’s) account which may totally or partially cover the risk indicating the risk and the insured value. These instructions must be given for each shipment separately.
Chapter V – Methods of Contract Execution
For each expedition to be organized by the freight forwarder, the initial customer will address a written request in order to obtain a transport solution.
Within that request, the customer will specify all the specific information needed for the freight forwarder, so that the two parties can correctly set all the contractual parameters (both operative and financial) related to the transport to be organized.
Once this first stage has been completed, the customer will then send to the freight forwarder a firm shipment order, called this way or bearing any other name, which undoubtedly must imply the assignment of the freight forwarder to execute on his behalf the shipment to a particular destination, the type of shipment (import or export), the packaging form of goods (parcels, pallets, coils, etc.), their dimensions, the quantity and type of goods transported, the type of transport (full truck or groupage), countries in which the transport is taking place (if needed),
place of loading, loading contact, date of loading, customs at the place of loading and agreed customs agent (if applicable), special conditions for ensuring the integrity of goods during transport (straps, bars, etc.), the recipient of the cargo, the agreed price that the customer will pay to the freight forwarder for organization the shipment, the name and position of the person sending the shipping order on behalf of the customer, as well as any other aspects that the customer considers necessary for the proper organization and conduct of the shipment.
If there are missing items in the shipment order and therefor damages and/or prejudices to any party involved are to be produced, implicitly to the customer’s third parties, these damages/prejudices cannot be charged to the freight forwarder, which implicitly will not bear any compensation.
In conclusion, the customer’s shipment order must contain all the necessary elements to allow the freight forwarder to correctly organize and carry out the transport in question, as well as related operations.
After receiving the firm shipment order from the customer, the freight forwarder will confirm in writing to the customer that he will execute the shipment under the conditions specified and assumed and will immediately proceed to execute it on the basis of the contractual terms established.
To speed up the execution of the shipments, the parties agree that the request and the confirmation of the shipment’s execution are to be sent in writing either by electronic mail to the e-mail address communicated by the freight forwarder, or by fax.
It is considered to be a concluded contract the customer’s order addressed to the freight forwarder, followed by its acceptance.
After the shipment has been concluded, the freight forwarder will send by e-mail to the customer a copy of the shipping invoice and of the corresponding transport documentation.
Ordering and acceptance can be sent by post, by e-mail, or by fax, depending on how the parties agreed in this regard.
The provisions of this hereby document shall be applied in addition to the shipments orders issued by the customer.
Chapter VI – Special Transports
In the case of special transport (refrigerated, dangerous goods), the freight forwarder shall provide the customer with all the necessary information to carry out the shipment, the transport options, price, insurance etc., on the basis of which the customer, knowingly, can agree the shipment contract.
Chapter VII – Complaints
Complaints against the freight forwarder can be made within 6(six) months.
The 6(six) month term begins since the day of delivery at destination, or, if delivery hasn’t occurred, from the day the shipment contract has been concluded.
Chapter VIII – Payment Terms
As a result of its services performed, the freight forwarder will issue an invoice for the amount agreed by the parties in the contract/shipment order.
If, in addition to the agreed amount, the freight forwarder has also registered a series of additional costs (payment of customs formalities, road taxes, surplus weight fines, fines for non-conformity of goods, etc.) strictly necessary to fulfill its obligation to make the goods reach their destination in good conditions and respecting the legislation in force, costs in respect of which the parties did not initially agree, the customer agrees that these amounts are billed together with the shipping cost and undertakes to pay them.
At the same time, at the request of the customer, the freight forwarder will provide proof of such expenses.
The payment of the shipment and other possible services shall be made by the customer or by the recipient, if so agreed, based on the invoice issued by the freight forwarder.
Payment term of the amounts so invoiced runs from the date of receipt of the invoices by the customer (including those anticipated by e-mail and/or fax) and is required to be specified in the contract /shipment order.
If payment has been agreed in several installments, failure to pay a due rate automatically draws the chargeable amount of the entire amount due.
In the event of late payment of invoices, the customer will owe the freight forwarder penalties for each day of delay, according to the provisions stipulated for this purpose in the shipment contract and/or the transport order.
Capitolul IX – Dreptul de gaj și Dreptul de retenție al Casei de Expediții
The freight forwarder has, for all its claims arising from current or past services provided to the customer, a lien and retention of cargo and of any other assets belonging to the customer that are found in his possession.
Chapter X – Arbitration clause
Unless otherwise agreed, disputes between the freight forwarder and the customer or between the freight forwarder and the parties legally entitled, which were not been solved amicably, are within the jurisdiction of the judicial authorities in the town where the freight forwarder is located.
The legal relationships between the freight forwarder and the customer, resulting from the application of these general conditions, are governed by Romanian law.