Flat-rate Forwarding Contract or Carrier Contract? (OLG Köln)

Higher Regional Court of Cologne, order of 29 September 2015 – I-3 U 103/15.

Guiding Principles

1. The freight forwarder shall be liable as a freight carrier if a certain amount has been agreed as a fee, including the costs of transport. The decisive factor is whether the nature of the compensation agreement shows that the freight forwarder shall carry out the transport essentially on his own account and not on the account of the shipper (cf. OLG Hamburg, 11 January 2007, 6 U 66/06; January 1999, I ZR 158/96).

2. It is decisive that a freight forwarder who promises to provide his services for payment of a fixed remuneration acts for his own account and is exposed to the typical conflict of interest, which, according to the intention of the legislature, is to be solved by the application of the respective freight law (see BGH, 21 January 1999, I ZR 158/96).