GT&C

General Terms and Conditions for Ship Brokers and Ship Agents in Germany

These General Terms and Conditions apply for

ARKON Shipping GmbH & Co. KG and ARKON Shipping & Projects GmbH & Co. KG

Article 1 Scope

 
(1) These General Terms and Conditions (hereinafter referred to as “General Terms”)
shall apply to any and all types of legal relationship (hereinafter referred to as
“Assignment”) between ARKON Shipping GmbH & Co. KG / ARKON Shipping &
Projects GmbH & Co. KG (hereinafter referred to as the “Ship Broker”, independent of
the legal nature of the Assignment), a member company of the German Ship Brokers’
Association (Zentralverband Deutscher Schiffsmakler e.V.) and any other contractual
partner which calls upon the services of the Ship Broker (hereinafter referred to as the
“Client“), regardless of whether the Assignment of the Ship Broker is non-recurring or
continuous.
 
(2)  These General Terms shall apply specifically, but without limitation, to the Assignment
of a Ship Broker as (1) liner agent (including the right to enter into bills of lading in the
name, and/or for the account, of the Client), as (2) port or canal agent and as (3) sale &
purchase broker or chartering broker.
 

Article 2 Characteristics of Services

 
(1)  In all cases, the Ship Broker shall act on behalf, and for the account, of the Client
unless otherwise agreed in writing.
 
(2)  The Ship Broker is entitled and authorized to take any and all measures which appear
to him to be necessary in order to meet the obligations of the Assignment, including,
without limitation, to entering into market standard contracts with third parties in the
name, and for the account of the Client.
 
(3)  Unless otherwise agreed in writing, any and all offers submitted by the Ship Broker
shall not be binding until the Assignment has become finalized.
 
(4)  In his function as sale and purchase broker or chartering broker, the Ship Broker shall
have the authority to conclude contracts on behalf of the Client unless the Client has
explicitly excluded same.
 
(5)  The Ship Broker is exempted from the restrictions of Article 181 of the German Civil
Code (Bürgerliches Gesetzbuch, BGB).
 
(6)  The Ship Broker is authorized, but not obligated, to collect sums due to the Client from
third parties and to accept payments from third parties for the Client. The Ship Broker
has the right to pay out to the Client any foreign-currency amounts he has collected for
the Client in Euros at the exchange rate valid on the date of payment.
 
(7)  The Ship Broker is under no obligation to provide financial guarantees or contracts of
surety to third parties for the Client or to make any payments for which the Client has
not provided sufficient cover to the Ship Broker in advance, or for which the Client has
not provided collateral which the Ship Broker, in his fair judgment, considers to be
sufficient.
 

Article 3 Remuneration, Compensation for Expenses

 
(1)  The Ship Broker shall receive as remuneration for his services an amount to be agreed
upon between the Parties unless otherwise mandatorily provided for in collective
agreements or statutory regulations.
 
(2)  For any and all financial guarantees, sureties or disbursements of the Ship Broker, the
Ship Broker shall be entitled to additionally receive a commission fee of at least 2.5%
of the nominal value of the security provided.
 
(3)  All costs incurred in connection with bank transfers made by, to or for the Client shall
be borne by the Client.
 
(4)  In addition to his entitlement to remuneration and a commission, the Ship Broker shall
be entitled to demand from the Client the reimbursement of any and all expenses which
he has reasonably incurred during the performance of the Assignment.
 
(5)  The Ship Broker has the right to demand that a reasonable advance be paid for the
expenses set forth in Clause 4.
 
(6)  In the event that a specific currency has not been agreed regarding the Ship Broker's
remuneration, the Ship Broker can, at his option, demand payment in the currency of
the transaction upon which his remuneration (e.g. commission) is based, or in euros at
the exchange rate valid on date of the invoice to the Client. The Ship Broker can
demand compensation for expenses, at his option, in the currency in which these were
incurred or in euros at the exchange rate valid on the date of the invoice to the Client.
Commission claims based on the provision of security shall be deemed to have arisen
in the currency of the relevant security.
 
(7)  The Ship Broker’s claims for payment shall be deemed due upon the receipt of the
Ship Broker’s invoice by the Client. Receipt through electronic channels is sufficient in
this context.
 
(8)  Any payment claims of the Ship Broker which are not settled by the Client within 21
days of the invoice date shall be subject to interest from the date of the invoice at a rate
of 9 percentage points above the base rate valid at the time.
 

Article 4 Offsetting, Right of Retention, Lien

 
(1)  The Ship Broker is entitled to satisfy his claims at any time from their due date onwards
by offsetting these against counterclaims of the Client.
 
(2)  The Ship Broker is also entitled to satisfy due and payable claims against the Client, or
companies in which the Client directly or indirectly holds a majority share, or against
companies which directly or indirectly hold a majority share in the Client, doing so from
amounts collected by him for the Client (e.g. freight charges). In addition, the Ship
Broker has a right of retention.
 
(3)  Notwithstanding any rights of retention or lien to which the Ship Broker is entitled on
other legal grounds, the parties hereby agree that, in relation to all claims of the Ship
Broker against the Client, the Ship Broker shall have a contractual lien on any and all
assets of the Client which are in, or come into, the possession of the Ship Broker,
independent of the legal basis for same and independent of the date upon which such
claims have arisen.
 
(4)  At his option, the Ship Broker has, after the due date, the right to enforce the lien by
selling the pledged property by way of private sale or public auction if the Client has not
made payment in full, or provided other security to the satisfaction of the Ship Broker,
within 30 days of the receipt of a written reminder setting a final date for payment of at
least 20 days under notification of the subsequent enforcement of the lien.
 

Article 5 Liability of the Ship Broker

 
(1)  The Ship Broker shall perform his services with the diligence of a prudent businessman
and shall carefully choose the individuals with whom he entrusts the performance of his
obligations.
 
(2)  Claims for damages, or reimbursement of expenses, of the Client against the Ship
Broker, his official bodies, his employees or other vicarious agents are excluded unless
they arise due to an act committed by the Ship Broker, his official bodies, employees or
vicarious agents, which act constitutes
a. an intentional or grossly negligent breach of duty;
b. a culpable breach of duty resulting in an injury to life, body or health;
c. non-fulfillment of a guaranteed characteristic; or
d. the culpable violation of a fundamental contractual obligation. Fundamental
contractual obligations (cardinal obligations) are deemed those obligations the
proper performance of which is indispensable in enabling the relevant contract
entered into on the basis of these General Terms to be performed and upon
the compliance with which the Client customarily relies.
 
(3)  The damages for the violation of a fundamental contractual obligation (cardinal
obligation) on the part of the Ship Broker (Article 5 Clause 2 Sub-clause d.) is limited to
such damage as is foreseeable and may typically occur in such contracts. This shall
not apply in the event that the Ship Broker is liable for an intentional or grossly
negligent breach of duty (Article 5 Clause 2 Sub-clause a.), for injury to life, body or
health (Article 5 Clause 2 Sub-clause b.), or for a characteristic which the Ship Broker
has guaranteed (Article 5 Clause 2 Sub-clause c.). Damage is deemed foreseeable if it
is the type of damage which can normally be expected to occur given the breach of the
standard obligation.
 
(4)  The risk of incomplete, incorrect or delayed communication of information between
Client and Ship Broker, specifically including, without limitation, the use of postal or
electronic channels, shall be borne by the Client. This shall not apply in the event of
liability arising as set forth in Clause 2 Sub-clauses a. to d. above.
 
(5)  The provisions of the foregoing Clauses 1 through 4 shall not reverse the burden of
proof to the detriment of the Client.
 

Article 6 Special Liability for Forwarding Services

 
(1)  If the Ship Broker provides forwarding services in conjunction with his Assignment, his
liability in this respect shall be governed by the German Freight Forwarders’ Standard
Terms and Conditions 2017 (Allgemeine Deutsche Spediteurbedingungen, ADSp
2017). The ADSP 2017 contain lower limits to liability than the satutory provisions.
Clause 23 of the ADSp 2016 limits the statutory liability for loss of or damage to goods
according to section 431 of the German Commercial Code in the amount of 8,33 units
of account per kg to maximum 1.25 Million Euros per case of damage, and 2 Million Euros per event,
or respectively to 2 units of account kg, whichever sum is the greater, and the statutory liability
in case of multimodal transport that includes a sea carriage to 2 units of account if the lacalization
of the loss or damge event is unknown.
 
(2)  A unit of account within the meaning of this Article 6 is the special drawing right (SDR)
of the International Monetary Fund.
 
(3)  The Ship Broker will provide the Client with the text of the ADSp 2017 without delay
and at no cost for the Client upon request.
 

Article 7 Time Bar

 
All claims against the Ship Broker, his official bodies, his employees and his other vicarious
agents shall, independent of legal grounds, become time-barred upon expiry of one year
from the relevant statutory beginning of the period of limitation unless any of the cases of
liability as set forth in Article 5 Clause 2 Sub-clauses a. to d. has arisen.

 

Article 8 Embargos and Sanctions

 
(1)  The Client warrants that the transaction which is being performed in connection with
the Assignment of the Ship Broker does not violate statutory rules or regulations,
particularly including, without limitation, any economic, trade or financial sanctions with
which the Ship Broker must comply (hereinafter collectively referred to as “Prohibitive
Legislation”).
 
(2)  The Ship Broker shall not be under obligation to perform any Assignments which
violate the Prohibitive Legislation or in relation to which the Ship Broker has reason to
suspect that a violation may occur. In the event of a refusal, the Ship Broker shall be
entitled, notwithstanding the partial or non-performance of the Assignment, to claim
from the Client the reimbursement of any and all expenses which he has incurred in
connection with the Assignment.
 

Article 9 Dangerous Goods

 
The Client shall inform the Ship Broker immediately and without delay in writing if the
Assignment involves any items or goods which require special handling in regard to their
receipt, loading, discharge, storage, transport or delivery, or for which notification or a permit
is required. This shall specifically include, without limitation, dangerous goods as defined
under the International Maritime Code for Dangerous Goods (IMDG Code).
 

Article 10 Confidentiality

 
The Ship Broker is required to treat as confidential only such information and data of the
Client which the Client has specifically identified as confidential in writing.
 

Article 11 Written Form

 
Any amendments of supplements to these General Conditions or to the contract of which
these General Conditions are an integral part must be made in writing in order to be valid.
This shall also apply to the nullification of or any amendments to the requirement of the
written form.
 

Article 12 Place of Jurisdiction, Applicable Law, Disputes with Consumers

 
(1)  Any and all disputes between the Ship Broker and the Client arising from or in
connection with an Assignment shall be decided exclusively by the state court
competent at the location of the Ship Broker’s place of business as entered in the
Register of Companies.
To the extent that Art. 31 of the CMR or Art 46 § 1 of the CIM is applicable, the place of
jurisdiction set out in the foregoing sentence shall not be exclusive, but additional. As
far as Art. 39 of the CMR, Art. 33 of the Montreal Convention or Art. 28 of the Warsaw
Convention are applicable, the first sentence of this Clause shall not apply. Further, the
first sentence of this Clause shall not apply if a different place of jurisdiction is provided
for in mandatory statutory law.
 
(2)  As an alternative to the place of jurisdiction agreed in Clause 1, the Ship Broker is free,
based on his own discretion in the individual case, to bring an action at the state court
within the general jurisdiction of the Client.
 
(3)  The Assignment of the Ship Broker shall be governed exclusively by German law,
notwithstanding that the respective services may have been performed or are to be
performed abroad in part or in their entirety.
 
(4) The Ship Broker does not commit nor is he obliged to participate in Alternative
Dispute Resolution (ADR) to resolve disputes with consumers before an ADR
entity in accordance with the Act on alternative dispute resolution for consumer
disputes (Verbraucherstreitbeilegungsgesetz). 
 
13.02.2017

Source: Zentralverband Deutscher Schiffsmakler e.V.