FENEX stands for Federatie van Nederlandse Expediteurs and is an important trade association in the Netherlands that represents the interests of freight forwarders. In practice, people therefore often refer to the "FENEX Conditions". Although many will understand what you mean, this is now formally incorrect. The correct designation is the "Dutch Forwarding Conditions 2018". In fact, FENEX has developed more types of general conditions than the Dutch Forwarding Conditions. So beware!
The Dutch Forwarding Conditions are one of the commonly used standardised sets of general conditions used in contracts between forwarders (in the broad sense) and their principals. These conditions were drawn up by the Federation of Dutch Forwarders and are intended to regulate the rights and obligations of both parties in the case of (international) logistics service provider and transport.
The FENEX conditions cover a wide range of topics, including liability, payment terms, insurance, dispute resolution and more. These conditions aim to provide clarity and avoid conflicts by laying down the obligations of both the forwarder and the client.
Use in practice
The FENEX Conditions can be used when a forwarder, also known as a logistics service provider, and its customer, usually a shipper or an importer/exporter, enter into an agreement for logistics services. Although the Dutch Forwarding Conditions are mainly intended for forwarding in the narrow sense and customs work, the conditions can also cover other aspects of the logistics service such as storage. FENEX conditions are often included in the contract between the forwarder and its customer. It is also common for general conditions to declare the FENEX conditions applicable.
The Dutch Forwarding Conditions do not automatically apply to a contract, as there is no fixed clause for them. Active action must be taken to ensure that these conditions apply to any agreement with the principal. This means that the Dutch Forwarding Conditions must be explicitly declared applicable prior to or during the conclusion of the agreement and provided to the principal. However, it is important to note that companies wishing to use the Dutch Forwarding Conditions without being members of FENEX are not allowed to use the FENEX name or the FENEX logo. Indeed, this would infringe FENEX's trademark rights and wrongly create the impression that these companies are members of FENEX and that the FENEX Guarantee Fund applies.
It is important to note that the FENEX conditions are optional and the parties are free to use alternative conditions if they wish. However, if the parties decide to use FENEX conditions, they should make sure they understand what these conditions entail and agree to the provisions before signing a contract. After all, FENEX conditions qualify as (supplementary to) general terms and conditions, upon acceptance, it then does not matter whether someone is familiar with the content of these conditions due to their general nature. We wrote a blog about that earlier. It is therefore advisable to seek legal advice to ensure that interests are adequately protected and that you are aware of the legal consequences of the FENEX conditions in their specific situation, in order to avoid being bound by the FENEX conditions without knowing their contents.
Forwarder or carrier?
A forwarder using the Dutch Forwarding Conditions should be aware that merely using these conditions is not sufficient to be considered a forwarder. The distinction between transport and forwarding is not absolute. While a carrier transports goods from point A to point B, a forwarding agent arranges the transport from point A to point B. According to Article 8:60 of the Civil Code, the forwarding agent is considered a "doing carrier". However, there are also carriers who engage a charter and thus also arrange the transport from point A to point B. Are these carriers then freight forwarders or carriers? For the principal, this distinction is important. Earlier, we wrote a blog about the difference between a carrier and a freight forwarder.
If there is any doubt, the forwarder should prove that he is actually acting as a freight forwarder. Should he fail to do so, he will be considered a carrier. Whether the Dutch Forwarding Conditions still apply in that case depends on the interpretation of the contract. The Rotterdam District Court decided that when the Dutch Forwarding Conditions are used in the context of transport (by a carrier), the principal is not automatically deemed to be aware of them and tacitly agree to their application to the transport contract. This is because the term "Dutch Forwarding Conditions" initially brings to mind conditions used in forwarding operations.
In essence, the user of the Dutch Forwarding Conditions must communicate extremely clearly with the principal, both about his role (as forwarder) and about the applicability of these conditions to the work to be performed. There should be no room for confusion or discussion.
Why are the FENEX conditions important?
The FENEX conditions are important for several reasons:
· Standardisation: Using standardised conditions makes it easier for freight forwarders and their customers to draft and understand contracts. This helps avoid misunderstandings and disputes.
· Protection: The FENEX conditions provide a degree of protection for both the forwarder and the customer. They provide guidelines regarding the forwarder's liability in case of damage or loss of goods.
· Legal framework: FENEX Conditions comply with Dutch and international legislation on forwarding and logistics. This ensures legal certainty in international trade transactions.
· Clarity: The conditions lay down the obligations of both parties in detail, leaving little room for differences in interpretation.
Important aspects of FENEX conditions
· Liability: The conditions determine the extent of the forwarder's liability in case of damage or loss of goods. They usually limit liability to a certain amount per kilogram or per package.
· Payment terms: FENEX conditions regulate the payment terms between the forwarder and the customer, including rates and payment terms.
· Insurance: They often contain provisions relating to the insurance of goods during transport, where the parties can agree who is responsible for taking out insurance.
· Dispute resolution: The terms contain clauses on dispute resolution, such as arbitration procedures, to resolve any conflicts.
Want to know more?
Would you like to contract with FENEX conditions? Or do you have any other legal question about transport law, please contact one of our lawyers, who have built up years of expertise within this field.
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