The FENEX conditions deal with a number of topics relevant to the daily operations of a freight forwarder. For example the method of payment and payment deadlines, the obligation of the client to compensate costs such as container demurrage, pledge and lien, and the liability regime including the limit of liability.
In the event of a dispute arising between a principal and a freight forwarder, the FENEX conditions are of great importance. After all, the FENEX conditions include the designation of the competent court.
In a nutshell, the FENEX conditions arrange that the court where the freight forwarder is located has jurisdiction in case of unpaid and uncontested invoices. However, when a freight forwarder is confronted with a damage claim by his principal or when the invoices are contested, arbitrators have exclusive jurisdiction.
Despite these arrangements in the FENEX conditions it often happens that a freight forwarder is summoned to appear before a regular court. In that case, the freight forwarder tries invoke the arbitration clause in the FENEX conditions. The subsequent discussion will often be if the FENEX conditions, containing the arbitration clause, are applicable.
The FENEX conditions are terms and conditions. Generally, the question whether terms and conditions are agreed upon will be answered according to the Dutch rules on offer and acceptance. Accordingly, there has to be an offer made by the freight forwarder including the applicability of the FENEX conditions, which has to be explicitly or implicitly accepted by the client.
Conversely, recent case law of the Court of Rotterdam (ECLI:NL:RBROT:2016:4923) suggests there are stricter requirements on the applicability of the arbitration clause in the FENEX conditions. In this case before the Court of Rotterdam, a principal and a freight forwarder concluded a freight forwarding contract or a contract of carriage. Parties disagreed on this issue. In the e-mails of the freight forwarder the FENEX conditions were declared applicable. During carriage cargo damage occurred. The principal held the freight forwarder liable for this damage. The freight forwarder disputed that the Court of Rotterdam had jurisdiction, based on the arbitration clause in the FENEX conditions.
Firstly, the Court of Rotterdam noted that the applicability of the FENEX conditions was not explicitly agreed upon. The court then ruled that one should not conclude too easily that the applicability of the FENEX conditions is agreed upon implicitly when carriage is agreed to instead of freight forwarding. After all, the FENEX conditions generally apply to freight forwarding activities and not to transportation.
The court then decided on the question whether the agreement between parties concerned freight forwarding or carriage and concluded that there was a contract of carriage. According to the court, the implication is that the FENEX conditions were not implicitly agreed upon. The arbitration clause in the FENEX conditions was therefore not applicable, and the Court of Rotterdam was competent.
The Court of Rotterdam included the contents of the agreement (carriage or freight forwarding) in answering the question whether the FENEX conditions were applicable. The question rises whether this is correct. FENEX conditions can apply to a contract of carriage, because the clauses in the FENEX conditions work in case of a carriage contract and they even contain rules specifically tailored to carriage. This is only different when it comes to liability. When dealing with international road transport, the CMR conventions applies mandatorily and to that extent the FENEX conditions are put aside. The FENEX conditions explicitly provide for this situation.
While it is possible to criticize the decision of the Rotterdam Court, freight forwarders must take into account their assignment can constitute a contract of carriage. Consequently, the applicability of the FENEX conditions is bound to stricter requirements. Freight forwarders are advised to seek advice on the way they declare the applicability of the FENEX conditions.
