The legal status and identification standards of international freight forwarding:

The trend of expanding and complicating the scope of freight forwarding business has made its legal status break through the traditional sense of the agent, and become the party Identities are involved in the cargo transportation process. Different legal statuses will change the legal responsibilities they bear. Therefore, the correct identification of the legal status of freight forwarders is the basic prerequisite for resolving relevant disputes. However, international and domestic legislation have not yet formed a unified identification standard for this. This article intends to analyze the legal status of freight forwarding from the perspective of civil law theory and industry practice, and conduct a preliminary discussion on its identification standards.

International freight forwarding (hereinafter referred to as freight forwarding) originates from the English word "the freight forwarder". There is still no unified definition internationally. As far as its business scope is concerned, it refers to being between the cargo owner and the carrier in the international freight market, accepting the entrustment of the cargo owner, acting as an agent for chartering, booking, stowage, making relevant documents, customs declaration, inspection, insurance, disassembly and assembly Containers, settlement of freight and miscellaneous charges, and even delivery of documents, negotiation and foreign exchange settlement and other services. After joining the WTO, my country's freight forwarding enterprises will undergo drastic changes in their own business development and external environment. On the one hand, the rapid growth of foreign trade import and export volume has expanded the demand for freight forwarding services and provided a broad space for the development of freight forwarding; on the other hand, the commitment to join the WTO and the "Tenth Five-Year Plan for National Economic and Social Development" formulated by the central government The "2019 Plan and Proposal" all list freight forwarding as a key area for opening up operations and expanding opening up. Especially after the four-year transition period, my country will allow wholly foreign-owned enterprises to operate international freight forwarding business, which will bring severe challenges to a large number of small and medium-sized freight forwarding companies. In order to adapt to this environment, it is necessary to expand the scope of business. The legal status of a freight forwarder will vary with the changes in its business scope, and its rights, obligations and legal responsibilities will also change accordingly. Therefore, identifying the legal status of a freight forwarder has an important impact on all parties involved in the freight forwarding business.

1. Analysis of the legal status and responsibilities of freight forwarding

(1) Analyze the legal status of freight forwarding by combining the entrustment and agency systems of contract law and civil law.

According to the different names used by freight forwarders when handling international freight business, the legal status of freight forwarders can be divided into the following two situations:

1. In the name of the principal, as the shipper Handle international cargo transportation and related business. This is the most primitive state of freight forwarding. He appears as a pure shipper agent, and the legal relationship generated is actually the most common direct agency in civil law. The status of each party is simple and clear. The legal relationship is as shown in the figure below:

Entrusted as agent

Shipper————→International Freight Forwarding——————→Third Party

(Principal) (Agent)

However, when applying the provisions of the civil law on the agency system, attention should be paid to the conflict between civil law and commercial law. For example, the provision prohibiting the agency of both parties does not of course apply to the freight forwarding business. Especially considering the circulation and standardization characteristics of the bill of lading, the law should make flexible interpretations when determining the validity of this legal relationship.

2. Handle international cargo transportation and related business for the shipper in your own name. At this time, the freight forwarder can enter into a contract with a third party in its own name. The premise is that there is a contractual relationship between him and the shipper. Depending on the nature of the contract, whether it is an entrustment contract or a transportation contract, it can be specifically divided into the following two situations:

⑴The shipper and the freight forwarder enter into an entrustment contract.

Entrustment Contract Transportation Contract

Shipper————→International Freight Forwarding————→Third Party

As shown in the figure above, international freight forwarding is based on The entrustment contract between yourself and the shipper, and with the authorization of the shipper, you can handle freight in your own name. Depending on whether the freight forwarder discloses its identity as a trustee when dealing with a third party, it can be divided into: ① The freight forwarder handles freight in its own name, but indicates its identity as an agent.

At this time, as long as the freight forwarder discloses its legal status, regardless of whether it discloses who the principal is, according to the opinion of British agency law expert Bosted, "As long as the third party is aware of the existence of an agent when conducting commercial activities, Rather than thinking that you are dealing with the agent alone, the identity of the agent is public. As for who the agent is, whether the name of the agent has been disclosed to the third party, and whether the third party can find out the principal. "The name is irrelevant" can constitute an agency relationship, and its legal status is still equivalent to an agent in the general sense of civil law; ② The freight forwarder handles freight in its own name, but does not indicate the identity of its agent. This situation constitutes an undisclosed agent in the common law system. Different from the general agency in civil law, the freight forwarder is only obliged to disclose when the freight forwarder is unable to perform its obligations to the opposite party due to the reasons of the third party or the principal. This legal relationship gives rise to the third party's right of choice and the principal's right to intervene, but this does not of course exclude the freight forwarder from performing other contractual obligations and assuming responsibilities.

⑵The shipper and the freight forwarder enter into a transportation contract.

As shown in the figure, there are two transport contracts in the freight process:

Transport Contract A Transport Contract B

Shipper——→International Freight forwarder——→ Third party

(actual carrier)

In contract A, the freight forwarder acts as the carrier for the shipper; in contract B, The freight forwarder also acts as the cargo owner for the actual carrier. The two contracts form a chain of relationships, in which the freight forwarders are in different legal positions and bear different legal responsibilities. If a dispute occurs, you must first determine which contract the dispute exists in, and then determine the role and responsibilities of the freight forwarder. This legal relationship is particularly common when the freight forwarder acts as a non-vessel operating common carrier or an intermodal transport operator.

In addition, the freight forwarder may also appear as the actual carrier in practice (such as actually transporting goods in some sections of multimodal transport). At this time, the legal status of the freight forwarder has exceeded that of an agent and has become a party. , is no longer adjusted by the agency system of civil law or the entrustment system of contract law, and will not be analyzed here.

(2) Analyze its legal status based on the practice of the freight forwarding industry

When freight forwarders participate in the operation of different businesses and are in different legal relationships, their legal status is very different and can be divided into narrow senses The business nature and functions of agents, independent operators and comprehensive service providers are also very different.

1. The legal status of freight forwarding in the traditional sense.

Although the term "freight forwarding" has not yet formed a unified definition internationally. However, the definitions and explanations of many authoritative agencies, domestic legislation, and legal dictionaries reflect the legal status of freight forwarders in the traditional sense, that is, the agent of the cargo owner, the intermediary connecting the cargo owner and the carrier, and does not participate in the actual transportation-this is also the freight forwarder. The basic nature of.

The main obligation of freight forwarders in the traditional sense is to accept the instructions of the shipper to provide services for the transportation of relevant goods and related links, and to act reasonably and prudently on behalf of the shipper to arrange transportation and select carriers. As long as this obligation is fulfilled, You will not be held responsible for any damage or loss of goods arranged for transportation. At this time, the relationship between the cargo owner and the freight forwarder is subject to the adjustments of the agency and entrustment systems of the Civil Law and Contract Law, and is a simple legal relationship between the agent and the principal, and the principal and the principal.

2. The legal status of freight forwarders as independent operators

The development of informatization and the continuous improvement of customer needs have caused traditional freight forwarders to expand their business scope, from "middlemen" to independent operators People transform. The "Implementation Rules of the People's Republic of China on the Management of the International Freight Forwarding Industry" that was implemented in 2002 also stipulates in Article 2: "International freight forwarders can engage in international freight forwarding business as independent operators." As an independent operator, a "freight forwarder" has broken through the original meaning of "agency" in the civil law and is in a relatively independent position from the cargo owner. On the one hand, it accepts the cargo owner's instructions and serves the interests of the cargo owner; on the other hand, when performing its entrusted obligations They will also calculate for their own benefit.

Generally speaking, a freight forwarder as an independent operator should have the following legal characteristics: ① accept the entrustment of the consignee, consignor or agent of import and export goods; ② can issue transportation documents; ③ have the obligation to perform the transportation contract and undertake the carriage ④ Charge freight and service fees.

As an independent operator, the legal status of a freight forwarder will be different due to different business scopes:

(1) As a freight forwarder as a non-vessel operating common carrier. With the large-scale application of giant container ships and the increase in freight business volume, freight forwarders in the traditional sense take advantage of their competitive advantages in operating investment, management costs, risk burden, and cargo collection capabilities by not operating ships, and assume the function of responsibility converters. , developed into a non-vessel operating common carrier. From the perspective of business operation characteristics, NVOCC combines goods from different shippers into cargo groups (usually containers) through LCL and devanning, and signs a transportation contract with the actual carrier to deliver the goods for transportation.

A freight forwarder, when acting as an NVOCC, is a special type of intermediary between the shipper and the actual carrier: for the shipper, it is the carrier who issues the transport document (i.e. freight forwarder bill of lading, House B/L), assumes the transportation responsibility and charges the freight from the shipper according to its own tariff; for the actual carrier, it is the shipper, accepts the bill of lading issued by the actual carrier, and pays according to the actual carrier's tariff Freight; At this time, there are two transportation contracts in the transportation of goods: the transportation contract between the freight forwarder and the shipper and the transportation contract between the freight forwarder and the actual carrier. This back-to-back contract simplifies the legal relationship between the parties and makes the assumption of legal liability more direct.

In terms of responsibility, the freight forwarder plays a dual role at this time. On the one hand, if the goods are damaged or delayed in the freight, the freight forwarder will first investigate the actual situation based on the transportation contract signed between itself and the carrier. The carrier shall bear relevant responsibilities to the shipper; on the other hand, the shipper shall be responsible to the actual carrier for the basic obligations of the shipper, such as ensuring that the basic information of the goods is provided or declared, providing the specified packaging of the goods, and delivering the freight in a timely manner. etc.

⑵ Freight forwarder as a multimodal transport operator. In practice, freight forwarders as independent operators appear more often in multimodal transport operations, acting as contract carriers or even actual carriers. At this time, there is no big difference between freight forwarders and carriers. Especially in freight forwarders established by shipping companies, airlines, and railway transportation departments (such as COSCO International Freight Co., Ltd.), the actual carrier and freight forwarder have essentially been integrated. If the freight forwarder as a non-vessel operating common carrier has broken through the status of a pure agent, the freight forwarder as a multimodal transporter has officially developed from the dual identities of a pure agent, an agent and an operator to a party that bears independent transportation responsibilities. At this time, the freight forwarder is no longer the agent of the shipper or the carrier participating in the intermodal transport, but a party to the multimodal transport and an independent legal entity.

For the shipper, the freight forwarder is the carrier of the goods at this time. As an international multimodal transport operator, it enters into a multimodal transport contract with the cargo owner, issues the intermodal transport documents, collects the full freight, and is responsible for the goods. "Door to door" full transportation; for segment sub-carriers, the freight forwarder is the shipper of the goods, enters into a transportation contract with the sub-carrier, accepts the sub-bill of lading, and pays the freight to each segment carrier. There is no contractual relationship between the shipper and the segment carrier.

As a multimodal transport operator, freight forwarders, regardless of whether they have their own means of transportation or whether they actually participate in transportation, must apply the provisions of the Maritime Law on multimodal transport operators and bear the responsibilities of multimodal transport operators. Responsibility: On the one hand, it has the responsibility to reasonably and carefully select and supervise the section carrier; on the other hand, it needs to take care of the goods during transportation, perform the multimodal transport contract, and be responsible for the entire transportation.

3. Legal status of freight forwarders engaged in comprehensive business operations

Freight forwarders engaged in comprehensive business activities in a mixed capacity refer to different legal statuses at different stages and links of the business. Status, enjoy different rights, assume different obligations and responsibilities, sometimes as an agent, sometimes as a carrier, sometimes as a warehousing custodian or other independent operator, engaged in business activities, the business scope is no longer limited to traditional import and export Freight transportation, but to maximize the provision of services according to customer requirements, may involve a variety of legal relationships. In practice, it usually appears as a freight forwarder engaged in logistics business, such as Sinotrans, the largest freight forwarding company in my country. This kind of enterprise that started from freight forwarding business has basically formed a large-scale enterprise group with cargo transportation as its main business, combining transportation and trade, transportation and transportation technology, and integrating specialization, multi-function and comprehensiveness to realize one industry. Mainly, diversified business.

At this time, the legal status of the freight forwarder is that of a party, not an agent of other service providers. The content of services has developed into consolidation, inventory management, distribution services, labeling, order fulfillment, local delivery, classification and packaging, etc. It has completely broken through the transportation of goods and has become a comprehensive service provided by customers. If the word "freight forwarding" is used again, it seems that an expanded interpretation should be given. For example, freight forwarding services are defined as "referring to various services related to transportation, assembly, stowage, management, packaging or distribution, international express delivery, warehousing, and logistics distribution. and related ancillary and advisory services”.

The responsibilities assumed by the freight forwarder at this time should be comprehensively determined in accordance with the nature of the specific behavior, the identity of the activity and the business situation, and in accordance with the corresponding legal norms of each industry.

2. Identification standards for the legal status of freight forwarders:

The diversity and complexity of the identity of freight forwarders in international freight require us to comprehensively consider many factors when determining their legal status in specific operations. factors. In addition to the general standards for identifying the legal status of the parties under normal circumstances, such as express or implied agreements in the contract, presumed intentions of the parties, industry transaction habits and previous transaction practices between the parties, etc., the author below focuses on the analysis of freight forwarding as a special legal relationship subject. How to identify the standards for its legal status from its business methods and service content:

1. Standards for issuing transport documents.

In Troy v. The Eastern Company of Warehouses, Judge Bankes L.J. held that "although a party describes himself as a freight forwarder, he may indeed act as a mere agent on a particular occasion. But... by issuing a combined transport bill of lading, he has clearly stated in this particular transaction the fact that he exists as an independent contracting party to a contract of carriage." Indeed, the transport document has a certifying effect on the transport contract. The freight forwarder issues the transport document in its own name and signs its name in the carrier column. Once the cargo owner accepts the transport document, in the absence of contrary evidence, it shall Once it is determined that the transportation contract relationship between the cargo owner and the freight forwarder exists, the freight forwarder should bear the responsibility of the carrier. The "contrary evidence" mentioned here means that if the freight forwarder wants to maintain the legal status of the agent, it can indicate through a signature on the document that the freight forwarder only issues the document as an agent (as agent only) or that the principal acknowledges the existence of such an entrustment relationship. (This recognition can only bind the principal itself) to indicate that the freight forwarder only appears as an agent. In this case, although the freight forwarder issues the transport document, it is still not regarded as the carrier.

Part 7.1 of the FIATA Standard Rules stipulates the responsibilities of a freight forwarder as a carrier as follows: "The freight forwarder's responsibilities as a carrier are not limited to the fact that he directly uses his own means of transport for transportation (carrying on the business of the carrier) ), and that if he issues his own transport document, he has expressly or implicitly made a commitment to assume the carrier's liability (as a contractual carrier)." NSAB standard clauses also stipulate that "a freight forwarder shall be deemed to have the status of a contracting carrier when it issues transport documents in its own name...".

The "bill of lading" issued by the freight forwarder mentioned here is the HBL issued by the freight forwarder as mentioned above when it acts as a non-vessel operating common carrier. It is different from the general bill of lading: the HBL is used to settle foreign exchange rather than pick up the goods. Therefore, the consignee and the notifier There are many differences in terms of applicable freight rates and other aspects. Based on the issuance of HBL, the identity of the freight forwarder as the contracting carrier can be determined; if the freight forwarder actually participates in the transportation and issues the transportation bill of lading, it will further be regarded as the actual carrier.

2. According to the standards of freight forwarding behavior.

This standard is the substantive criterion for judging the legal status of freight forwarders. Even if the legal status is clearly stipulated in the contract, if the actual role played by the freight forwarder in freight transportation, the role played and the actual degree of participation are inconsistent with this agreement, the actual actions performed by the freight forwarder should prevail.

In the traditional sense, the freight forwarder's obligation is only to comply with the instructions of the agent, select the carrier faithfully and reasonably and carefully, assist in arranging transportation work, and does not participate in the transportation itself.

Once the freight forwarder participates in the freight process, it will be regarded as a party to the transportation. The German Transport Law (HGB) stipulates that the freight forwarder shall be recognized as the carrier when organizing goods from several different sources to be transported on the same means of transport. The National Customs Brokers and Freight Forwarders Association Standard Clauses (NCBFAA) believes that "when a freight forwarder takes possession of the goods, it can act as a carrier, warehouse or packer, thereby assuming corresponding responsibilities for the goods. In other cases, the freight forwarder shall act in accordance with this standard Terms appear as agents”. In summary, if the freight forwarder takes possession of the goods (including warehousing and packaging); or uses its own means of transportation (including vehicles, containers); or consolidates goods from different cargo owners, it may result in the freight forwarder being identified as the carrier. Bear the responsibility for damage to goods in transit and delayed delivery, regardless of what is stipulated in the bill of lading. In the current situation where the business scope of freight forwarding continues to expand, warehousing integration and the consolidation of goods from different sources often occur, this standard is particularly important in practice as a basis for judging whether a freight forwarder is in the legal status of a carrier.

When the services provided by freight forwarders go beyond the transportation of goods in the general sense, providing a comprehensive service to customers across industries requires the legal status of the freight forwarders to be determined based on the specific service content provided by the freight forwarders.

3. Standards for the nature of remuneration collected by freight forwarders.

In judicial practice, courts and arbitration institutions tend to regard the nature and composition of the remuneration received by the freight forwarder as one of the relevant factors in determining whether he is a carrier or an agent.

The remuneration the freight forwarder receives from the cargo owner includes two forms: lump sum fee and agency commission. Here, the "lump fee" in the freight market is represented by a one-time payment by the cargo owner, including the freight and handling fees of the goods, the operating profit of the freight forwarder, the freight difference when entrusting other carriers to transport the goods, and the payment fees for related matters. . The cargo owner entrusts the freight forwarder to arrange all transportation matters by paying the lump sum fee, and the lump sum freight part becomes one of the proofs that the freight contract relationship is established. If the fact that the lump sum fee is charged is coupled with further evidence that the freight forwarder's profit source is from the freight difference between the cargo owner and the carrier, it can prove that there is an agency relationship between the freight forwarder and the cargo owner in the absence of contrary evidence. , the freight forwarder is deemed to have the legal status of a carrier. The HGB stipulates that if a freight forwarder charges a fixed fee, it will be treated as a carrier in terms of its rights and obligations.

If the fees charged by the freight forwarder are in the form of agency commissions, they should be deemed to be agents. At this time, the freight forwarder obtains remuneration based on the entrustment contract, and the provisions of the entrustment system apply to the acquisition and loss of the right to claim remuneration.

What is particularly worth noting here is that in practice, few freight forwarders only charge commissions and do not earn the freight difference. Therefore, the standard for determining the legal status of a freight forwarder can only be determined based on whether the source of the freight forwarder's profit is the agency commission or the freight difference. as a correlate, not a determinant. This attitude was expressed in a 2002 judgment issued by the Shanghai Maritime Court.

In this case, the plaintiff buyer and the defendant freight forwarding company concluded a lump sum contract in 1999, but the contract did not state whether the freight forwarder was acting as an agent or a contractual carrier. In the end, the court found that the freight forwarder was not responsible for this lump sum contract. And become a carrier. The interpretation of the judgment is that in the lump sum contract concluded between the freight forwarder and the buyer, although the freight forwarder receives the total freight and earns possible freight difference income, this fact does not necessarily mean that the freight forwarder is a contractual carrier at this time. The person shall be responsible for the damage caused during inland transportation. As a trade practice in the freight forwarding industry, the lump sum fee is usually a certain amount charged by the freight forwarder in advance from the interested parties of the goods in order to fulfill agency obligations, such as paying subcontractors, customs agents, inland carriers, etc. for performance fees. The lump sum fee may include the agent's commission, and the agent may also bear the deficit between what he receives and what he pays. These facts do not change the freight forwarder's legal status as an agent.

Determining the legal status of a freight forwarder is an issue that requires comprehensive consideration of many factors. It is necessary to specifically consider a series of facts of the individual case to determine the intention of the parties and compare it with the actual performance of the contract. In judicial practice, courts and arbitration institutions often consider the contract agreement, the issuance of the bill of lading and the specific business activities of the freight forwarder as substantive identification criteria, and characterize other factors as auxiliary factors to determine the legal status of the freight forwarder and reasonably allocate the parties. The risks and benefits enable international freight forwarding to better serve the development of international trade and shipping.