As is well known, the freight forwarder is an entrepreneur who carries out a very important activity in the organization of international and multimodal carriage of goods on behalf of its customers.
It is an organizer of the carriage of goods, but also performs, at the request of its customers, other activities or services of various kinds related to international transport, most of them auxiliary and complementary to it.
From experience we know that in countries around Spain (Netherlands, Italy, Germany, France, etc.) there is an adequate legal regulation of the freight forwarder or, at least, they have a basic regulation of its legal position. In general terms, in these countries the freight forwarder is a commissionaire de transport, a spedizioniere, a spediteur, a expediteur, a forwarder agent who, in addition to intervening at the request of his clients in the contracting of the transport, carries out a set of auxiliary and complementary transport activities and is not liable, except in certain legally stipulated circumstances, for the result of the transport in the contracting of which he has intervened.
Does Spain also have an adequate or basic regulation on the consignee? Without going into detail, historically in Spain the freight forwarders did not have an adequate, sufficient and safe legal framework for their business activities. The provisions of the former Code of Commerce- which are not any more in force- established a severe liability of the freight forwarder for damages and losses of the goods during the carriage organized by them. At present, I am afraid we can say the same since there is not yet adequate and complete regulation of the freight forwarder. This causes uncertainties, especially with regard to the freight forwarder’s liability regime.
The Act 9/ 2013, referring to road transport, contains a definition of land freight forwarder in its art. 121, which can be equally applicable to sea or air freight forwarder:
«A freight forwarder is considered to be a company specialized in organizing, on behalf of others, international transport of goods, receiving goods as consignees or delivering them to those who have to transport them and, where appropriate, carrying out the administrative, tax, customs and logistical formalities inherent to that kind of transport or intermediating in their contracting »
It should be noted that the Act 9/ 2013 expressly states that the organization of international transport and other activities are carried out by the freight forwarder «for the account of others» and, having declared the freight forwarder’s acting for the account of others, (effectively it is an agent), it is difficult to qualify the freight forwarder as a contractual carrier, since this action would imply acting for its own account.
However, as far as maritime transport is concerned, the Spanish Maritime Navigation Act 14/ 2014 , after stating in article 277 that «the carrier is liable for any damage or loss of the goods, as well as for delay in delivery«, indicates in article 278 that this liability for damage, loss or delay reaches jointly and severally both to the person who undertakes to carry out the transport and to the person who actually carries it out with his own means. The italicized language includes the freight forwarders and other persons who undertake with the shipper to carry out the transport “through others”.
In our view, this rule is very striking, since in general when the freight forwarder acts in the exercise of his activity as such, he is not obliged to transport, but only to look for others who are obliged to transport.
Moreover, it seems as if in maritime transport we can no longer refer to the freight forwarder as the traditional commissionaire de transport that we all know, acting on behalf of others, being that it can now only be considered as a contractual carrier. We find it difficult to understand this, since in each case it will be necessary to analyse the contract signed by the freight forwarder with his client, to examine in detail its terms, the instructions received by the forwarder, the form in which he has bound himself, his remuneration, etc.
The legal matching of the maritime freight forwarder to the contractual maritime carrier seems to be an over-simple solution provided in the Maritime Navigation Act to the complex issue of the liability of the former that, on the one hand seems questionable and raises controversy and, on the other hand, is not the solution to the complex and varied scope of action of the freight forwarder, which goes beyond the transport, where its condition of commission agent is evident.
The Maritime Navigation Law, published in 2014, was an ambitious renovating project of Spanish maritime law in many areas, but as far as the role of the maritime freight forwarder is concerned, it is not what was expected of it. The freight forwarder, as a relevant entrepreneur for the organization of international carriages and other related and complementary activities thereof, deserves a complete and safe regulation that does not currently exist in Spain. Hence, there are very authoritative voices that rightly call for the development of a comprehensive and appropriate legal regulation of freight forwarders that responds to the importance of their activity in transport, puts an end to the uncertainties that the current regime entails, and provides the necessary legal clarity and certainty to issues such as the freight forwarders’ s liability regime and others.