Member Article

In connection with the coronavirus, prices for transport services have increased, in some cases very considerably, such as when a reduction in freight space necessitates rebooking and rescheduling. Not everyone, and not even all commercial customers, may be aware of these price increases. It is also questionable whether corona-related additional costs may always be deemed usual remuneration (Section 632 German Civil Code). It is therefore particularly important for both parties to the contract of carriage to reach an express agreement on the cost of freight. It is advisable to agree price adjustment clauses allowing for unforeseen developments to be taken into account. Transport to or through certain areas is not possible at all or only with great difficulties and delays because of the coronavirus. This may lead to obstacles to transport and delivery in accordance with Section 419 German Commercial Code. If such obstacles to transport or delivery become apparent only after pick up of the goods, transport companies are to obtain instructions from the shipper (or consignee) in accordance with Section 418 or Section 446 Commercial Code. Where transport companies become aware of obstacles to transport or delivery prior to pick up of the goods, they will be obligated to notify the shipper and to agree whether an attempt at transport and delivery should be made nonetheless and how to proceed if the obstacle to transport or delivery actually occurs. Even if it is possible to carry out the transport, the duration of the transport may be considerably extended. Since, in accordance with Section 423 Commercial Code, transport companies are obligated to deliver the goods within the agreed period or, in the absence of an agreement, within the period reasonably required by a diligent carrier, transport companies may be liable for exceeding the delivery period under Section 425(1) Commercial Code. To minimize the risk of claims, it is advisable to expressly point out to the client that the usual delivery periods will not apply, but that they may be considerably longer as a result of the coronavirus. German courts tend to place particularly high demands on the transport industry (duty to provide detailed information to avoid the appearance of “gross organizational negligence”). Therefore, in a possible subsequent legal dispute, the transport company should be able to explain exactly why and how the coronavirus delayed the transport and what precautions it took to keep the delay as brief as possible.