Terms
General Austrian Forwarding Conditions (AÖSp)
Status: 01/2019
I. General
§ 1
The freight forwarder shall conduct his business with the due care of a prudent businessman. In doing so, he shall look after the interests of the principal.
§2
a) The AÖSp apply to all transactions of the freight forwarder with merchants and with companies in the sense of section 1 paragraph 2 KSchG, irrespective of whether they are forwarding, freight, warehousing, commission or other transactions related to the freight forwarding business.
b) The AÖSp are not applied
1. if the freight forwarder is only acting as a vicarious agent of a transport company on the basis of special conditions or according to the surface transport contract as ÖBB - surface transport operator.
2. the transport of removal goods with furniture trucks (furniture trailers, swap bodies, containers, lift vans) as well as the storage of removal goods. Transport of removal goods for clients within the meaning of lit. a) in Austria as well as from and to foreign countries shall be subject to the AÖSp, provided that it is a forwarding activity pursuant to § 407 HGB.
c) The AÖSp take precedence over local and district trade customs. Legal provisions of a mandatory nature limit the scope of application of the AÖSp accordingly. In the case of sea and inland waterway transports, deviating agreements may be made in accordance with the forwarder's special transport conditions.
d) In addition, those conditions apply which third parties involved in the execution have established.
§ 3
An assignment of the principal's rights to a third party as well as the assertion of claims against the freight forwarder on behalf of or for the account of a third party (cf. Section 67 Vers VG) can only be made to the extent that rights exist against the freight forwarder on the basis of these conditions.
§ 4
All quotations made by the Freight Forwarder shall only be valid for immediate execution of the relevant order if accepted without delay, unless otherwise stated in the quotation, and only if reference is made to the quotation when the order is placed.
II. goods excluded from acceptance
§ 5
a) Goods that could cause harm to persons, animals, other goods or other objects or that are subject to rapid decay or rotting are excluded from acceptance in the absence of a written agreement.
(b) If such goods are handed over to the forwarder without special notice and without labelling, the principal is liable for any damage arising therefrom, even if he is not at fault.
(c) The forwarder may, if the situation so justifies, sell such goods by way of self-help, either publicly or by private treaty. The principal must be informed of the intended sale, if possible. In case of imminent danger, the forwarder may destroy such goods without prior notice to the principal.
III. Order, Notifications, Instructions, Freight Forwarder's Discretion
§ 6
The freight forwarder does not assume any liability for compliance with verbal, telephonic and telegraphic orders or other communications which have not been confirmed in writing by either party, nor for compliance with communications to driving and escort personnel. The handing over of goods and documents of any kind to employees of the forwarder takes place exclusively at the risk of the principal, unless it has been expressly or tacitly agreed upon beforehand with the forwarder or one of his authorised employees.
§ 7
(a) The order placed with the freight forwarder shall contain the marks, number, nature, contents of the items and any other information relevant to the proper execution of the order.
information. Any consequences of incorrect or incomplete information shall be borne by the principal, even if he is not at fault, unless the freight forwarder was aware of the incorrectness or incompleteness of the information. The forwarder is only obliged to check and complete the information without an order if this is customary in the business.
The principal shall also be liable for all damage caused to the freight forwarder or third parties by the fact that the weight designation is not affixed to freight goods of at least 1000 kg gross weight.
(b) The freight forwarder is only obliged to weigh the goods upon special written instruction.
(c) A receipt issued by the forwarder does not, in case of doubt, contain any warranty as to the nature, contents, value, weight or packaging.
(d) The receipt of goods whose quantity is not usually checked in the forwarding business, such as bulk goods, wagonloads, etc., does not contain a confirmation of the quantity.
§ 8
If a manufacturer or dealer in certain products hands over a consignment to the freight forwarder for dispatch without stating its contents, it shall be assumed in case of doubt that the consignment contains the consignor's products. The provisions of § 7 are not affected by this.
§ 9
The principal shall notify the freight forwarder of his address and any change of address without delay; otherwise the last address notified to the freight forwarder shall be decisive.
§ 10
The forwarder need not send notifications by registered mail and documents of any kind by insured mail without a special written order.
(a) The forwarder is not obliged to verify the authenticity of signatures on any notices or other documents concerning the goods or the authority of the signatories, unless otherwise agreed with the principal in writing or the lack of authenticity or authority is obvious.
(b) The forwarder is entitled, but not obliged, to consider a notification (advice) sent by him as sufficient proof; he is entitled, but not obliged, to check the entitlement of the presenter.
§11
(a) An instruction given concerning the goods remains binding on the freight forwarder until revoked by the principal.
(b) An order to hold goods at the disposal of a third party cannot be revoked once the third party's order has been received by the freight forwarder.
§ 12
Notification by the principal that the instruction is to be executed for the account of a third party does not affect the principal's obligation towards the freight forwarder.
§ 13
In the absence of sufficient or executable instructions, the freight forwarder is entitled to act at his own discretion in the interests of the principal, in particular to choose the mode, route or means of transport.
§ 14
The freight forwarder may effect the consignment of the goods together with goods of other consignors in consolidated consignments (or on a consolidated bill of lading), unless he is expressly instructed to the contrary in writing. The handing over of a bill of lading for general cargo does not constitute an order to the contrary.
§ 15
If the freight forwarder takes over the goods with a consignment note or other transport document handed over to him by the principal, he may carry the goods with a new transport document bearing his company name and stating the name of the principal, unless the latter has stipulated otherwise.
IV. Examination, preservation and packing of the goods
§ 16
(a) In the absence of a written agreement, the forwarder is only obliged to inspect, preserve or improve the goods and their packaging within the scope of normal business practice. § Section 388 (1) HGE is not affected by this.
(b) In the absence of instructions to the contrary, the freight forwarder is authorised to make all declarations required by the railway concerning the absence or defects of the packaging.
V. Deadlines
§ 17
Loading deadlines, delivery deadlines and a certain sequence in the handling of goods of the same type of transport are not guaranteed in the absence of an agreement. The designation as fair or market goods does not imply preferential handling.
VI Obstacles
§ 18
Events for which the Freight Forwarder is not responsible, but which prevent him from fulfilling his obligations in whole or in part, furthermore strikes and lock-outs, release the Freight Forwarder from his obligations arising from the orders affected by these events for the duration of their duration. In such cases, the freight forwarder is entitled, but not obliged, to withdraw from the contract, even if the order has already been partially executed, even if a firm acceptance has been agreed. In such cases the principal has the same right, if he cannot reasonably be expected to continue the contract. If the freight forwarder or the principal withdraws from the contract in accordance with the above provisions, the freight forwarder shall be reimbursed for the costs incurred.
§ 19
Within the limits of his duty of care, the freight forwarder shall check whether there are any legal or official obstacles to the shipment and inform the principal accordingly.
VII. Services, remuneration and expenses of the freight forwarder
§ 20
Offers made by the freight forwarder and agreements with him concerning prices and services always refer only to his own named services and/or services of third parties and, unless otherwise agreed in writing, only to goods of normal size, weight and nature; they presuppose normal, unchanged transport conditions, unimpeded connecting routes, the possibility of immediate on-shipment and the continuation of the previous freight rates, exchange rates and tariffs on which the agreement was based. The usual special charges and special expenses may be levied by the freight forwarder provided that he has drawn the principal's attention to them. A general reference such as "plus the usual ancillary charges" is sufficient.
§ 21
If an order is withdrawn, the freight forwarder is entitled, at his discretion, either to the agreed remuneration, after deduction of the expenses saved, or to an appropriate commission.
§ 22
If the consignee refuses to accept a consignment delivered to him, the freight forwarder is entitled to an appropriate fee for the return transport. If the Freight Forwarder incurs costs due to delayed acceptance, these shall be borne by the Principal.
§ 23
The commission will also be charged if a COD or other collection order is subsequently withdrawn or the amount is not received.
§ 24
If the forwarder has undertaken to ship goods abroad to the premises of the non-Austrian consignee at a fixed percentage of the invoice value including customs duty, the principal is obliged to state the full invoice value without regard to any cash discount granted, including customs duty, freight and packaging.
§ 25
a) The order for shipment to a destination abroad includes the order for customs clearance, if without it the carriage to the destination is not feasible.
(b) The forwarder may charge a special commission for customs clearance in addition to the actual costs incurred.
(c) The instruction to deliver bonded consignments or to deliver them free house includes the authorisation for the freight forwarder, at his discretion (see section 13), to carry out the necessary customs formalities and to interpret the customs duties assessed.
(d) If the principal gives the forwarder instructions for customs clearance, these must be strictly observed. If customs clearance is not possible according to the instructions given, the forwarder must inform the principal immediately.
§ 26
The instruction to receive incoming goods authorises the freight forwarder, but does not oblige him to pay freight, cash on delivery, duties and charges resting on the goods.
§ 27
The freight forwarder is entitled to demand payment from foreign consignees or principals in their national currency or in Austrian currency, at his discretion, subject to existing foreign exchange regulations.
§ 28
If the forwarder owes foreign currency or has interpreted foreign currency, he is entitled to demand payment either in the foreign or in the Austrian currency, at his discretion, unless public law provisions to the contrary apply. If he demands Austrian currency, the conversion shall be made at the commodity exchange rate on the day the order is placed, unless he can prove that he has paid a higher rate.
§ 29
Invoices of the freight forwarder are to be paid immediately. Default in payment occurs, without the need for a reminder or other preconditions, at the latest after the expiry of five days.
days after the due date, unless it has occurred earlier in accordance with the law.
In the event of delay, the freight forwarder may charge the usual local charges and interest. Further legal claims remain unaffected.
§ 30
(a) Upon request, the principal shall immediately release the forwarder from any claims or additional claims for freight, average contributions, customs duties, taxes and other charges made against the forwarder, in particular as the party entitled to dispose of or as the owner of third party goods. Otherwise, the forwarder is entitled to take any measures he deems appropriate to secure or release the principal, if necessary, and if the situation so justifies, also by destroying the goods.
(b) The principal shall inform the forwarder in due time and in a manner customary in the trade about all public law, e.g. customs law, obligations connected with the possession of the goods. The principal is liable to the forwarder for all consequences of failure to do so.
§ 31
Seizure or other acts of public law do not affect the rights of the freight forwarder towards his principal; the principal remains the contracting party of the freight forwarder and is liable to the freight forwarder for all consequences arising out of such events, even if he is not at fault. Any claims of the forwarder against the State or any other third party shall not be affected thereby.
§ 32
Against claims of the freight forwarder, a set-off or retention is only permissible with due counterclaims of the principal to which an objection is not opposed.
VIII. Delivery
§ 33
(a) Delivery of the goods may be made with discharging effect to any adult person belonging to the business or household and present on the premises of the consignee.
(b) Unless otherwise agreed, the freight forwarder makes the goods available for acceptance in or on the means of transport (e.g. truck, swap body, etc.) in front of the consignee or, if possible, on his premises.
c) The consignee may require goods to be removed to yards, ramps, rooms, shelves and the like against payment of the costs and risk. This does not apply
for goods weighing 50 kg or more per piece or for goods that cannot be carried by one person due to their size.
§ 34
a) Acceptance of the goods obliges the consignee to immediately pay the costs of the goods, including cash on delivery. If the payment is not made, the driving or escort personnel is entitled to take the goods back.
(b) If, upon delivery, payment of the costs, including cash on delivery, is omitted by mistake or for other reasons, the consignee, if he fails to pay the amount despite being requested to do so, is obliged to immediately return the goods unconditionally to the forwarder or, in case of inability to pay, to pay damages to the forwarder. The assertion of a counterclaim or a right of retention as well as disposals of the goods are not permitted.
IX. Insurance of the goods (transport, fire insurance, etc.)
§ 35
(a) The forwarder is only obliged to insure the goods if he has received an express written order stating the insured value and the risks to be covered. In the case of imprecise or impracticable insurance orders, the type and scope of insurance is left to the discretion of the forwarder. The insurance shall only become effective as soon as the forwarder has been able to take out the insurance in the ordinary course of business.
(b) The forwarder is not entitled to regard the mere statement of value as an order for insurance.
(c) By accepting an insurance policy, the forwarder does not assume the duties incumbent upon the policyholder; however, the forwarder must take all customary measures to preserve the insurance claim.
§ 36
In the absence of a written agreement to the contrary, the Freight Forwarder shall only insure against the usual insurance conditions at his place of performance and not against the risk of breakage. The freight forwarder always fulfils his insurance obligations by taking out insurance on the basis of a general policy, if any.
§ 37
(a) In the case of insurance, the principal is only entitled to compensation for what the forwarder has received from the insurer in accordance with the insurance conditions.
(b) The forwarder shall fulfil his obligations if he assigns to the principal, upon request, the claims against the insurer; he is only obliged to pursue the claims on the basis of a special written agreement and only for the account and at the risk of the principal.
(c) If the damage is covered by insurance taken out by the forwarder on behalf of the principal, the forwarder shall not be liable.
(d) If the principal insures himself, any claim for damages against the forwarder arising from perils covered by this insurance is excluded, i.e. does not pass to the insurer.
§ 38
The freight forwarder is entitled to special remuneration for arranging insurance, collecting the amount of loss or damage and other efforts in the handling of insurance claims and averages.
X. Forwarding insurance certificate and cartage insurance certificate (SVS and RVS)
§ 39
(a) Unless the principal expressly forbids it in writing, the forwarder is obliged to insure the damage that may be caused to the principal by the forwarder during the execution of the order with insurers of his choice at the expense of the principal. The insurance policy must, in particular with regard to its scope of cover, at least correspond to the Freight Forwarding and Cartage Insurance Certificate (SVS/RVS). The Freight Forwarder shall charge the premium for each individual transport contract on an order-related basis and pay it in full to the respective insurers as expenses of the Principal exclusively for the forwarding insurance. Upon request, the Freight Forwarder shall inform the Principal with whom he has taken out the Freight Forwarders' Insurance.
b) In accordance with the SVS, insurance cover is also provided for damage that may be incurred by persons who had the insured interest at the time of the event causing the damage.
c) It is emphatically pointed out that according to § 5 par. 1 SVS all damages which are covered or usually covered by transport or storage insurance are excluded from the forwarding insurance. On the other hand
the principal is insured against so-called cartage damage in accordance with the Cartage Insurance Certificate (RVS), unless he has expressly prohibited this additional insurance in writing.
(d) If the principal insures the freight forwarding insurance himself, any claim for damages against the freight forwarder arising from perils covered by this insurance shall be excluded, i.e. shall not pass to the freight forwarder's insurer.
§ 40
The principal submits himself and all persons in whose interest or on whose behalf he acts to all conditions of the SVS and the RVS. In particular, he must ensure timely notification of damage (§ 10 SVS).
§ 41
(a) If the forwarder has covered the forwarder's insurance as a result of an explicit or presumed order (Section 39), he is released from liability for any damage covered by this insurance. This applies in particular to cases where the sum insured falls short of the actual value or amount of damage as a result of the principal's failure to declare the value or insufficient declaration of value.
b) In the event of a dispute, only the competent court shall decide whether damage is covered by the forwarding insurance.
(c) If the freight forwarder has not taken out freight forwarding insurance in accordance with section 39, he may not invoke the AÖSp vis-à -vis the principal.
d) The lit. a) to c) apply accordingly to the insurance covered by the RVS.
§ 42
For forwarding insurance and cartage insurance, § 35 lit. a) 2. and 3. sentence shall apply accordingly.
XI. Storage
§ 43
a) Storage shall take place at the choice of the warehouse keeper in his own or a third party's (private or public) warehouse. If the warehouse keeper stores goods in a third party's warehouse, he shall inform the depositor in writing of the storage location and the name of the third party warehouse keeper or, if a warehouse warrant has been issued, he shall indicate this on the warehouse warrant.
to be noted on it. This provision does not apply in the case of storage abroad or storage connected with transport.
b) If the warehouse keeper has stored the goods in a third-party warehouse, the relationship between the warehouse keeper and his principal pursuant to § 2 lit. c) shall be governed by the same conditions that apply to the relationship between the warehouse keeper and the third-party warehouse keeper. The warehouse keeper shall send these conditions to the principal on request. The terms and conditions of the third-party warehouse keeper do not apply to the relationship between the principal and the warehouse keeper insofar as they contain a lien that goes beyond the lien stipulated in § 50 of these terms and conditions.
c) The warehouse keeper shall only be obliged to secure or guard storage facilities insofar as they are his own storage facilities and the security and guarding is necessary and customary in the locality, taking into account all circumstances. The warehouse keeper shall fulfil his guarding obligation if he has exercised due diligence in hiring or accepting guarding.
d) The depositor shall be free to inspect the storage premises or have them inspected. Any objections or complaints against the storage of the goods or against the choice of the storage premises must be raised immediately. If he does not make use of the right of inspection, he shall waive all objections against the manner of storage, provided that the choice of the storage room and the storage have been made with the due care of a prudent warehouse keeper.
§ 44
a) The depositor is only allowed to enter the warehouse if accompanied by the warehouse keeper or an employee appointed by the warehouse keeper.
(b) Entry may only be requested during business hours established at the warehouse keeper's premises, and even then only if working during daylight hours is possible.
§ 45
a) If the depositor takes any action with the goods (e.g. taking samples), he shall thereafter hand over the goods to the warehouse keeper again in a manner appropriate to the circumstances and customary practice and, if necessary, ascertain the number, weight and quality of the goods together with him. Otherwise, any liability of the warehouse keeper for damage ascertained later shall be excluded.
b) The warehouse keeper reserves the right to have the actions that the depositor wishes to take with the stored goods carried out by his employees.
§ 46
a) The depositor shall be liable for all damage caused by him, his employees or agents while entering the warehouse or while entering or driving on the warehouse premises.
to the warehouse keeper, other depositors or the property owner, unless the depositor, his employees or agents are not at fault. Third parties who visit the warehouse or the warehouse property at the instigation of the depositor are also deemed to be the depositor's agents.
b) The Warehouse Keeper may not assign to third parties the claims to which he is entitled pursuant to lit. a), insofar as they exceed the statutory claims.
§ 47
(a) Unless otherwise agreed in writing, the warehouse keeper may terminate the storage contract at any time by giving one month's notice by registered letter to the last address notified to him.
b) Termination without notice is permissible in particular if the goods endanger other goods.
c) If the warehouse keeper has doubts as to whether his claims are secured by the value of the goods, he is entitled to set a reasonable deadline for the depositor to either secure the claims of the warehouse keeper or to arrange for alternative storage of the stored goods. If the depositor does not comply with this request, the warehouse keeper is entitled to terminate the agreement without notice.
§ 48
a) As soon as the goods have been properly stored, either a warehouse receipt or a registered warehouse warrant shall be issued upon request. In case of doubt, the certificate issued by the warehouse keeper shall only be deemed to be the warehouse receipt.
b) The warehouse receipt is only a certificate of the warehouse keeper about the receipt of the goods. The warehouse keeper is not obliged to hand over the goods only to the person presenting the receipt.
c) The warehouse keeper is entitled, but not obliged, to check the legitimacy of the presenter of the receipt; he is entitled without further ado to hand over the goods to the presenter against delivery of the receipt.
d) An assignment or pledge of the depositor's rights under the storage contract is only effective vis-Ã -vis the warehouse keeper if it has been notified to him in writing by the depositor. In such cases, only the person to whom the rights have been assigned or pledged is entitled to dispose of the stored goods vis-Ã -vis the warehouse keeper.
e) If a "named warehouse warrant" has been issued, the warehouse keeper shall be obliged to hand over the stored goods only against delivery of the named warehouse warrant, in particular not merely against a delivery note, consignment note or the like, and in the case of assignment only to the holder of the warehouse warrant who is legitimised by a continuous chain of declarations of assignment on the warehouse warrant.
(f) The warehouse keeper shall be required to check
1. the authenticity of the signatures on the declarations of assignment,
2. the authenticity of signatures on delivery notes and the like,
3. the authority of the signatories to 1. and 2.
not be obliged to do so, unless otherwise agreed with the client or the lack of authenticity or authority is obviously recognisable.
g) The assignment or pledging of the depositor's rights under the storage contract shall only be effective vis-Ã -vis the warehouse keeper if it has been declared in writing on the warehouse warrant and, in the case of pledging, has also been notified to the warehouse keeper.
(h) The warehouse keeper may only raise objections against the legal successor of the depositor legitimised under the foregoing provisions which concern the validity of the issue of the certificate or which arise from the certificate or to which the warehouse keeper is directly entitled against the legal successor. The legal right of lien or retention of the warehouse keeper is not affected by this provision.
§ 49
The provisions of this section shall also apply in the case of only temporary storage of goods, e.g. for the purpose of dispatch, unless section 43 provides otherwise.
XII. lien
§ 50
(a) The forwarder has a lien and a right of retention on the goods or other valuables in his possession in respect of all claims, whether due or not, to which he is entitled against the principal arising out of the services mentioned in § 2 lit. a). Insofar as the lien or right of retention according to the first sentence secures claims which are not secured by the statutory lien or right of retention, only such goods and values are covered which belong to the principal.
(b) Insofar as the right of lien or retention from lit. a) would exceed the statutory right of lien or retention, it shall, in the case of orders placed by one forwarder with another forwarder, only apply to goods and other valuables which belong to the commissioning forwarder or which the commissioned forwarder considers and is entitled to consider as belonging to the commissioning forwarder (e.g. furniture van, blankets, etc.).
(c) The forwarder may exercise a lien or right of retention in respect of claims not connected with the goods only to the extent that
they are not disputed or if the debtor's financial situation jeopardises the forwarder's claim.
(d) In the case of an instruction to hold the goods at the disposal of a third party or to hand them over to a third party, the forwarder may not exercise a lien or right of retention on account of claims against a third party which are not connected with the goods, to the extent and for as long as the exercise would be contrary to the instruction and the legitimate interests of the original principal.
(e) Any further statutory rights of lien and retention of the freight forwarder are not affected by the above provisions.
f) If the forced sale of the property is threatened, the debtor shall be given a period of one week to put the matter in order. The debtor shall be notified of the sale of the property.
(g) For pawn or self-help sales, the freight forwarder may in all cases charge a
Calculate sales commission from the gross proceeds in the amount of the customary local rates.
XIII Liability of the freight forwarder
§ 51
(a) The forwarder is liable for all his actions (see § 2 lit. a) only to the extent that he is at fault. The freight forwarder has the duty to discharge himself; however, if damage to the goods was not externally apparent or if, for other reasons, the freight forwarder cannot reasonably be expected to clarify the cause of the damage, the principal must prove that the freight forwarder was responsible for the damage.
(b) In all other respects the liability of the freight forwarder is limited or waived in accordance with the preceding and following provisions, except in cases of wilful misconduct or gross negligence.
(c) Apart from the insurance option (see §§ 35 ff., 39 ff.), the principal is free to agree with the freight forwarder a liability exceeding these conditions against special remuneration. to agree with the freight forwarder on a liability exceeding these conditions against special remuneration. Such an agreement must be made in writing.
§ 52
(a) If damage has been caused to a third party, namely a carrier, warehouse keeper, skipper, intermediate or sub-forwarder, insurer, railway or goods collection point, banks or other entrepreneurs involved in the execution of the order, the forwarder shall assign his possible claim against the third party to the principal upon his request, unless the forwarder, on the basis of special arrangements, assumes the prosecution of the claim for the account and risk of the principal. The aforementioned third parties are not deemed to be vicarious agents of the forwarder.
(b) The freight forwarder shall only be subject to a further obligation or liability if he is guilty of a culpable breach of his duties under section 408 (1) of the German Commercial Code (HGB).
(c) The freight forwarder is only liable in accordance with these terms and conditions, even in cases covered by §§ 412 and 413 of the German Commercial Code (HGB).
§ 53
The freight forwarder's liability shall cease as soon as the goods have been made available to the consignee for acceptance (section 33 lit. b) and have been accepted by him.
§ 54
(a) To the extent that the freight forwarder is liable at all, the following maximum limits shall apply to his liability:
1.€ 7,267.28 per claim for damage resulting from embezzlement or misappropriation by an employee of the freight forwarder. This does not include legal representatives and authorised signatories, for whose actions there is no limitation of liability. Damage within the meaning of paragraph 1 is any damage caused by one and the same employee of the freight forwarder through embezzlement or misappropriation, irrespective of whether other employees of the freight forwarder are involved in the damaging act and whether the damage affects one principal or several independent principals of the freight forwarder. The freight forwarder is obliged to inform his principal on request whether and with which insurance company he has covered this liability risk.
2. ? 1.09 per kg gross of each damaged or lost collo, but not more than ? 1,090.09 per claim.
3. for all other damage, with the exception of para. 1, a maximum of ? 2,180.18 per
Damage case.
b) If the declared value of the goods is lower than the amounts in lit. a), the declared value shall be taken as a basis.
(c) If the value to be taken into consideration in accordance with lit. b) is higher than the fair market value or, in its absence, the fair value which the goods of the same type and quality had at the time and place of handing over to the forwarder, this fair market value or fair value shall take the place of the declared value.
d) In the event of any differences in the values, the lower value shall always apply.
§ 55
In the case of damage to a material part that has an independent value (e.g. machine part), or in the case of damage to one of several items belonging together (e.g.
(e.g. furniture, fixtures and fittings), any reduction in the value of the remainder of the item or of the other tangible parts or items shall not be taken into account.
§ 56
a) For all goods whose value exceeds ? 29.06 for the kg gross, as well as for
The freight forwarder is only liable for damage of any kind to money, documents and valuables if he has received a written statement of value from the principal in sufficient time to enable him to decide whether to accept or refuse the order and to take the necessary precautions for receipt, safe custody or dispatch.
(b) The handing over of a statement of value to driving and escort personnel is without legal effect as long as it has not come into the possession of the freight forwarder or his commercial employees authorised to receive it, unless otherwise agreed.
c) If the principal proves that the damage is due to circumstances other than the omission to declare the value or would have arisen even if the value had been declared, lit. a) shall not apply.
d) The provisions of the other paragraphs, insofar as they limit or cancel liability beyond the provisions of this paragraph, shall remain unaffected.
§ 57
The liability of the freight forwarder is excluded:
a) 1. for damage, in particular also damage caused by robbery, to goods that are not packaged or are inadequately packaged, unless a prior special written agreement on liability has been made;
2. for goods which are deemed to be unpacked or defectively packed in accordance with the transport regulations applicable; these shall also be deemed to be unpacked or defectively packed vis-Ã -vis the freight forwarder;
3. for externally visible damage to the packaging which becomes apparent immediately or later; the freight forwarder may have such damage repaired at the principal's expense, but he shall not thereby assume any liability in excess of that set out in the preceding paragraphs;
b) for damage caused by storage in the open if such storage was agreed or if other storage was impracticable in accordance with normal business operations or the circumstances;
c) for damage caused by theft within the meaning of §§ 127 ff. or by extortion or robbery within the meaning of §§ 144 ff. and §§ 142 ff. StGB;
d) for the direct or indirect consequences of any other event which the
forwarder is not at fault (e.g. force majeure, weather conditions, etc.),
(e.g. damage to any equipment or pipes, influence of other goods, damage by animals, natural changes to the goods);
e) for loss and damage in inland waterway forwarding (including related preliminary and connecting transport by land means of transport as well as preliminary, intermediate and connecting storage), which are covered by transport or storage insurance or could have been covered by transport or storage insurance of a generally customary nature or which, according to the prevailing practices of diligent businessmen, are covered beyond the scope of transport or storage insurance of a generally customary nature, unless a duly concluded insurance policy is rendered ineffective by faulty actions of the forwarder.
§ 58
(a) If, according to the circumstances, damage could have arisen from a peril specified in section 57, it shall be presumed that it arose from that peril. In such cases, the freight forwarder shall only be liable to the extent that it can be proved that he was at fault in causing the damage.
(b) The provisions of the other paragraphs shall remain unaffected insofar as they limit or waive the liability of the freight forwarder beyond §§ 57 and 58 lit. a).
§ 59
Any liability of the freight forwarder is excluded if he proves that he delivered the goods in the same external condition as when he received them. The Freight Forwarder's obligations under § 388 of the German Commercial Code (HGB) are not affected by this.
§ 60
(a) All damage, even if not externally visible, must be reported to the forwarder in writing without delay. If the goods have been delivered by a freight forwarder, the delivering freight forwarder must be in possession of the damage report by the sixth day after delivery at the latest.
b) In the event of non-compliance with the above provisions, the damage shall be deemed to have occurred after delivery.
(c) If the forwarder receives a notice of damage at a time when it is no longer possible for him to safeguard his rights against third parties, the forwarder shall not be responsible for the consequences.
§ 61
In all cases where the damage amount to be paid or voluntarily offered by the freight forwarder reaches the full value of the goods, the freight forwarder is only obliged to make payment concurrently against transfer of title to the goods and against assignment of the claims to which the principal or the payee are entitled against third parties in respect of the goods.
§ 62
The term "damage" or "losses" used in these terms and conditions is to be understood in the broadest sense (§§ 1295 ff. ABGB), unless earlier paragraphs provide for a limitation, and thus includes in particular total or partial loss, reduction, depreciation, breakage, theft damage and damage as well as consequential damage.
§ 63
(a) If the freight forwarder invokes a limitation or exclusion of liability provided for in these conditions, the defence of tort is inadmissible.
(b) If a third party, who is directly or indirectly interested in the subject matter or the execution of the instruction given to the forwarder, raises a claim against the forwarder for an allegedly committed tort, which cannot be held against the forwarder according to lit. a), the principal shall immediately relieve the forwarder from such claims.
XIV Limitation
§ 64
All claims against the freight forwarder, irrespective of their legal basis and irrespective of the degree of fault, shall become time-barred after six months. The limitation period begins with the knowledge of the claimant of the claim, at the latest, however, with the delivery of the goods.
XV Place of performance, place of jurisdiction, applicable law
§ 65
(a) The place of performance is the place where the commercial establishment of the freight forwarder to which the instruction is addressed has its registered office.
(b) The place of jurisdiction for all disputes arising out of or in connection with the contractual relationship for all parties involved is the place of that commercial branch office of the forwarder to which the order is addressed; for claims against the forwarder this place of jurisdiction is exclusive.
(c) The legal relationship between the freight forwarder and the principal or his legal successors shall be governed by Austrian law.
Annex 1 to §§ 39-42 of the AÖSp
Forwarding insurance certificate SVS
§ 1 Insured person
The insurance is for the account of a third party. The insurance covers the party interested in the goods as principal or the party to whom the insured interest was assigned at the time of the event causing the damage.
§ 2 Liability in general
(1) The companies shall be liable for all damage suffered by the insured and for which a claim is made against the forwarder on the basis of a transport contract and for which a claim can be made by law.
2. transport contracts within the meaning of this insurance policy are understood to mean:
Forwarding and freight contracts as well as warehousing contracts within Austria including the usual ancillary contracts for such contracts ? but these also as independent contracts ? such as e.g. cash on delivery collection, weighing, other quantity determination, packaging, sampling, loading, unloading, customs clearance, arrangement of transport, fire and burglary insurance exclusively insurance contracts of any other kind (cf. § 9).
§ 3 Scope of the insurance in general
1. the companies shall compensate the damage in accordance with the statutory provisions concerning the liability of the policyholder under a contract of carriage. They waive the objections which the forwarder could raise on the basis of the provisions contained in the AÖSp and other agreements or trade and transport customs concerning the exclusion and reduction of the statutory liability.
2. the insurance also covers claims which the insured person does not base on a contract of carriage but on property, tort or unjust enrichment, provided that these claims are directly related to a contract of carriage concluded with the forwarder.
3. the insurance also covers claims that have arisen due to failure to exercise recourse, provided that it can be proven that the insured person has suffered a loss as a result.
4. damage caused by the intent of the freight forwarder, his legal representatives, employees or vicarious agents is also insured.
5. the insurers shall indemnify for damage to goods and financial losses insofar as these are directly connected with an insured transport order.
§ 4 Special provisions
The insurance also covers the insured person's claims against the forwarder:
1. due to fault in the selection of an intermediate forwarder or warehouse keeper;
2. for those damages (also from intent, but see § 5 Para. 6) for which a claim can legally be made against an intermediate forwarder, whether in Germany or in other European countries including Turkey. An extension of liability to the non-European intermediate forwarder requires the prior consent of the insurers.
§ 5 Limitation of liability
Excluded from the insurance are:
1. all risks covered by another insurance, in particular transport, warehouse (e.g. fire, burglary, mains water and storm damage insurance, etc.) or forwarders' insurance, unless such properly concluded insurance becomes ineffective due to faulty actions of the freight forwarder;
2. damage to goods caused abroad by foreign intermediate forwarders or other companies acting in the performance of the transport contract;
3. damage to goods in maritime and inland waterway forwarding;
4. all damage for which an entrepreneur in long-distance goods transport is responsible;
5. those claims arising from agreements between the insured and the forwarder which are not common practice in the forwarder's trade (e.g. contractual penalties, delivery time guarantees, etc.), and all those claims based on agreements between the forwarder and the insured which are not part of the transactions covered by § 2 Para. 2 or which go beyond the forwarder's statutory liability;
6. all those damages resulting from embezzlement or misappropriation;
7. in the case of storage contracts, also damage to the goods caused by omitted or faulty handling of the goods during storage, if this damage occurred after the 15th day of storage (Sundays and public holidays not included);
8. personal injury;
9. damages directly caused by the fact that advances, reimbursement contributions or the like are not used, forwarded or repaid for the intended purpose. Any further damage caused by this shall remain unaffected.
10. damage of any kind caused directly or indirectly by war, riot and looting, strike, civil unrest;
11. damage caused by nuclear energy and radioactivity.
§ 6 Insurance contract, sum insured, value and registration
a) For the purposes of the above provisions, the insurance covers any transport contract including storage.
b) In the case of transport contracts, the following shall generally be deemed to have been agreed:
The principal is entitled to prohibit the insurance. The forwarder or the principal shall notify the companies of the prohibition in writing for the attention of the appointed processing office. It can only be withdrawn by written notification, which must be sent immediately to the aforementioned processing office if necessary.
2. a) The insured value is the selling price or, failing that, the fair market value or fair market value of the goods at the place of acceptance at the time the transport order is issued, including transport, forwarding and customs costs. If the principal or any other person entitled under § 1
If the insured party wishes to insure an amount exceeding ? 1,453.46 for the transport order, he must inform the freight forwarder in writing of the sum insured immediately upon placing the transport order, at the latest, however, before dispatch, giving a precise description of the individual transport order.
(b) The forwarder shall, however, be entitled to estimate the value of the goods on the basis of sound documentation immediately upon acceptance of the transport order, at the latest before dispatch, even in the absence of abandonment.
c) In the absence of abandonment according to lit. a) or estimation according to lit. b), each transport contract according to § 2 for the insured person under § 1 is insured up to a maximum amount of ? 1,453.46 (cf. however § 8 par. 3).
d) oversight by the forwarder in the insurance declaration or in passing on the higher sum insured than € 1,453.46 in accordance with lit. a) or in the
The insured person shall not be disadvantaged in the event of non-payment of the premium or in the event of complete omission. In the case of oversights by the forwarder in passing on the higher sum insured than ? 1,453.46, this shall only apply if the
principal or the otherwise insured person pursuant to § 1 has complied with the provision of lit. a). Estimation errors are not covered by the oversight clause.
3. sums insured exceeding ? 1,090,092.51 for the individual transport contract are excluded. For shipments with a value higher than ? 1,090,092.51, if actually insured at ? 1,090,092.51, the insurers cannot raise the objection of underinsurance.
The forwarder shall notify all insured transport contracts to the companies for the attention of the appointed processing office at the end of each calendar month, but no later than the 10th of the following month, and at the same time pay the premium payable for them. Insurance for
Transport contracts in the amount of more than ? 1,453.46 must be reported by the forwarder individually to the companies once a month at the end of each calendar month, at the latest, however, on the 10th day of the following month, for the attention of the appointed processing office, together with the insured sum as well as the marks, the numbers, the contents and the number of items on the specification forms intended for this purpose.
§ 7 Audit right of the companies
The companies are entitled to verify the forwarder's declaration by inspecting the business books and other documents as far as they concern the insurance. The right of verification also exists vis-Ã -vis the insured person.
§ 8 Obligation to pay compensation in the event of damage
(1) If the insured person has sold the goods at the time of issuing the transport order, he shall receive at most the sales price, taking into account any cash expenses incurred or saved (freight, customs duties, etc.), unless the damaged or lost goods could be redelivered by the seller entitled to claim. In the latter case, the insurers shall only pay the cost price of the damaged goods.
2. in other cases, the Insured shall receive as the maximum amount the fair market value or market value which the goods had at the time of the issue of the transport order at the place where they were to be delivered, taking into account any cash expenses incurred or saved.
3. under all circumstances, the sum insured within the meaning of § 6 Section B Para. 2 lit. a) shall constitute the maximum limit of the obligation to indemnify. In the event of underinsurance, the companies shall only be liable proportionately. For pure financial losses, the sum insured shall be increased by 100%.
4. the companies shall also be liable to the insured person in the cases of §§ 12 par. 2, 15 and 16, namely in the event of termination of the insurance contract without notice from all transport contracts insured up to the effective date of the termination.
§ 9 Ceiling
1. the companies are liable to the extent of their participation (cf. § 19) for all claims filed under this insurance contract for one damaging event up to an amount of ? 1,090,092.51, even if several insured persons of the same insuring freight forwarder are affected by this damaging event.
2. in the case of preliminary, intermediate and subsequent storage, the maximum liability limit of the companies for fire damage attributable to the fault of the forwarder shall be ? 1,090,092.51.
3. the liability for damages resulting from faulty arrangement or complete failure to arrange transport, fire and burglary insurance by the freight forwarder amounts to ? 181.682,08.
§ 10 Assertion of the claim, obligations of the insured person and the forwarder, preclusion period
(1) The insured person shall notify the companies in writing of any damage without delay, but at the latest within one month of becoming aware of it, for the attention of the appointed processing centre or via the forwarding agent. The deadline shall be deemed to have been met if the notification is sent in good time. In the event of a culpable failure to meet the deadline, the companies shall be released from their obligations.
The insured person is obliged to take all possible steps to avert and minimise the loss, to provide the companies with any information requested and to supply the documents requested, and in general to do everything that may serve to clarify the loss and which is therefore required and can reasonably be required by the companies. If these obligations are breached by the insured person due to gross negligence or wilful misconduct, the insurers shall be released from their obligation to indemnify.
(3) The forwarder is also obliged, in compliance with any instructions given by the companies, to avert and minimise the damage, to provide the companies with all information and documents requested, and to do everything which may serve to clarify the damage and which is required and may reasonably be required by the companies. If these obligations are violated by the freight forwarder, his legal representative, authorised signatory or independent manager of his branch office due to gross negligence or wilful misconduct, the freight forwarder shall be liable to the companies for the full extent of the damage caused.
4. the payment of the claim amount shall be made to the insured person or his representative.
(5) In the case of incorrect loading resulting from an insured transport contract or from an insured storage, the companies will reimburse the forwarder for the additional transport costs, including any telegram, telephone and postage charges, which the forwarder has incurred in order to prevent further damage and which would have had to be incurred if, on the basis of statutory provisions, a claim could have been made against him for the damage either by the principal or by another insured party in accordance with § 1 (cf. however § 14). The freight forwarder is obliged to report the misloading immediately after he has become aware of it to the appointed handling agent and to provide all factual information. In the event of a grossly negligent or wilful breach of these obligations, the companies shall be released from their obligation to perform vis-à -vis the freight forwarder. The principal's own claims shall not be affected by this.
(6) The claims of the insured person or, in the case of para. 5, of the forwarder shall lapse if no action has been brought against the companies within a period of one year from the date of notification of the claim.
§ 11 Assignment and transfer of rights
1. the assignment of the insured person's rights under this contract against the companies following a claim to persons other than the freight forwarder is inadmissible.
2. claims of other insured persons on the basis of any statutory transfer are excluded from this insurance contract.
3. the assignment of the forwarder's rights to persons other than the company is not permitted.
§ 12 Right of recourse
1. the companies waive any recourse against the forwarder and his employees as well as against the intermediate forwarder who has subscribed the SCC and his employees.
2. however, recourse to the full amount is permitted against anyone who has deliberately caused the damage.
§ 13 Premium
(1) Every transport contract is subject to a premium, i.e. in principle every individual transport contract with every individual principal. However, if a transport contract includes dispositions to several recipients, each disposition shall be deemed to be a transport contract subject to premium, unless it only concerns deliveries to self-collectors. In the latter case, there is only one transport contract subject to insurance.
2. the premium rates for each transport contract, including insurance tax, are set out in the premium table.
3. for temporary storage up to a duration of 15 days (Sundays and public holidays not counted), which is directly related to a forwarding and freight contract, only the premium set for the forwarding and freight contracts in each case shall be charged.
For temporary storage up to the same duration, which is directly related to a storage contract, the respective premium of the storage contract is charged from the beginning of the storage.
For storage contracts, the premium shall be calculated per storage month or part thereof.
If additional services, such as commissioning, packaging, price labelling, etc., are taken over in a storage contract, the double premium is to be calculated once, at the time of storage.
§ 14 Damage participation of the freight forwarder
(1) The forwarder shall immediately refund to the companies, for the attention of the appointed processing centre, 10% of the amount paid by the companies per claim, with a minimum of ? 10.90, but not more than ? 181.68.The
First carrier is entitled to claim the excess from the party at fault for a loss compensated by the insurers.
2. if a legal representative, authorised signatory or independent manager of a branch office of the forwarder has caused the damage by a wilfully committed offence or crime and if the forwarder has breached the duty of supervision of a prudent businessman, the forwarder's share in the damage shall increase from 10% to 20% .The maximum limit of the share in such a case shall be ? 726.73. The provisions of § 12 par. 2 remain unaffected.
§ 15 Liability of the freight forwarder
The freight forwarder shall be liable to pay full compensation to the companies, except in the cases of § 10 par. 3 and § 12 par. 2:
1. if he has intentionally violated the obligation to register stipulated in § 6 Section B. (the companies must prove the intention);
2. if he remains in arrears with a due premium payment for longer than two weeks after receiving a reminder. The reminder must be sent by registered letter and must specify the legal consequences associated with the expiry of the deadline;
3. if damage has arisen as a result of substantial deficiencies in the forwarder's operations, the remedying of which the companies could reasonably demand on account of previous damage and had demanded within a reasonable period of time with reference to the legal consequences, but the forwarder had not remedied or had refused to remedy these deficiencies.
§ 16 Termination
The companies shall have the right to terminate this contract after approval by the Association of Freight Forwarders. The Professional Association of Freight Forwarders shall be deemed to have given its consent to the termination if it has not been refused in writing within four weeks of receipt of the companies' written request.
1. termination without notice
The companies are entitled to terminate the contract without notice:
a) in the cases of § 12 par. 2 and § 15;
(b) if the forwarder is in arrears with an amount payable by him in accordance with section 14 or with a judgement amount recognised by him in terms of figures or determined by the ordinary court with final effect for more than two weeks after
remains in default after receipt of the reminder. The reminder must be sent by registered letter and must state the legal consequences associated with the expiry of the deadline;
c) under other conditions regulated by law, in particular due to an important reason. Insofar as a reason for termination is regulated in these terms and conditions, the contractual regulation shall take precedence over the law.
d) The termination without notice shall take effect at the end of the fifth day after the day on which the letter of termination was handed over to the post office for transport.
2. special right of termination If the services rendered in a calendar year exceed the gross premiums paid by the forwarder for the same period less insurance tax, the insurers are entitled to demand individual remedial measures from the forwarder for the following year. If no agreement is reached within a reasonable period of time, the insurers are entitled to terminate the contract with one month's notice.
If there is no agreement between the Professional Association of Freight Forwarders and the companies, a court of arbitration shall decide. Both parties shall appoint one arbitrator each to this arbitral tribunal, who shall choose a chairman. If the arbitrators cannot agree on the person of the chairman within a period of two weeks, he shall be appointed by the President of the Federal Chamber of Commerce at the request of one or both parties or, if he is prevented from doing so, by his deputy.
The notice of termination shall be sent to the forwarder by registered letter. At the same time, the professional association of freight forwarders must be informed by registered letter.
§ 17 Duration of the insurance
This contract is concluded for the period from 1 January 1989 to 31 December 1989.
It shall be renewed for one year at a time if it is not terminated with three months' notice before expiry. In all cases, the notice of termination shall be sent to the companies for the attention of the appointed processing office.
(2) Should amendments to this contract be agreed between the insurance companies participating in this insurance policy and the Professional Association of Freight Forwarders, these shall replace the previous provisions.
§ 18 Jurisdiction
(1) For actions of the companies against the insuring forwarder for premium payment or payment of the participation amount according to § 14 SVS, the place of jurisdiction shall be Vienna.
The leading company is authorised by the participating companies to conduct all legal disputes as plaintiff or defendant also with regard to their shares. A judgment rendered against the leading company shall be recognised by the participating companies as also binding against them.
3. the processing agency commissioned by the companies is entitled to assert the insurers' rights under this contract in its own name.
§ 19 Management Clause and List of Participations
The insurance companies named in the list of participations participate in the above policy with the quotas stated therein, excluding joint and several liability. The management is in the hands of Wiener Allianz Versicherungs-Aktiengesellschaft, Vienna.
List of participants
Wiener Allianz, Versicherungs AG (leadership) 14.0%
Anglo Elementar, Versicherungs AG 11.6%
Erste Allgemeine Unfall- u. Schadensvers. Ges. 11.6%
Donau, Allgemeine Versicherungs AG 9.3%
RAS-Austria, Adriat. Vers. AG 9.3%
Vers. Anstalt der österr. Bundesländer 9.3%
"Winterthur" Insurance Ltd 8.8%
Wiener Städtische Wechselseitige Vers. 7%
Basler Insurance Company 3.7%
Helvetia, Schweizerische Feuervers. Ges. 3.7%
Nordstern, Allgem. Versicherungs AG 3%
Switzerland, Allgem. Versicherungs AG 2.9%
Mannheimer Insurance Company 2%
Internat. Accident and Damage Ins. AG 1.8%
Colonia, Versicherungs AG 1%
Grazer Wechselseitige Insurance 1%
100%
Advance participation HANNOVER Intern. AG 1%
Annex 2 to §§ 39-42 of the AÖSp
Cartage Insurance Certificate RVS
Concerns damage to goods from cartage orders in local and short-distance traffic
§ 1 Scope of the insurance and insurance contract
(1) On the basis of the following insurance conditions, the companies named in the SVS are liable for damage to the goods themselves, if this damage occurred during the rolling of goods in local and short-distance traffic in Austria and the forwarder or his agents are held liable for this and can be held liable by law. Damage to the goods which occurred during storage directly connected with the rolling of the goods for a period of up to 15 days (Sundays and public holidays not counted) is also insured.
2. each individual trolley job is insured, unless the client has expressly prohibited insurance in writing.
The cartage contract includes the rolling of incoming, outgoing or stored goods in addition to the associated handling. The insurance also covers a cartage order directly related to a transport contract.
§ 2 Limitation of liability
Excluded from the insurance are:
1. all damage covered by transport and/or warehousing insurance contracts, unless a duly concluded insurance policy is rendered ineffective by faulty actions on the part of the freight forwarder;
2. the cases listed in § 5 SVS under par. 1 lit. 5, 8, 9, 10 and 11;
3. the cases insured by SVS.
§ 3 Sum insured and registration
(1) Every cartage contract within the meaning of § 1 is insured up to the value covered. The provisions of § 8 SVS apply analogously.
(2) The forwarder shall declare all insurances on the basis of this insurance policy at the end of each calendar month, at the latest, however, on the 10th day of the following month, to the companies for the attention of the appointed processing office on the form intended for this purpose and shall pay the premiums at the same time.
§ 4 Premium
The premium rates for each transport contract, including insurance tax, are set out in the premium table.
§ 5 Referral to SVS
Unless otherwise stipulated in the above, the provisions of the forwarders' insurance policy shall apply in all other respects.
Conditions of carriage for furniture transport
XVI General
§ 1
a) The Terms and Conditions of Carriage for Furniture Transport apply to the transport of removal goods in a furniture van (furniture trailer, swap body, container, lift van) within Germany as well as to and from abroad. They apply to all operations and related transactions of the Contractor, unless they conflict with statutory provisions, in particular those for the protection of consumers.
b) The Contractor shall perform its obligations with the due diligence of a prudent businessman.
XVII Liability
A. Of the Contractor
§ 2
a) The contractor shall be liable for loss of or damage to the goods if the loss or damage occurs through his fault during the handling or carriage of the goods for which the contractor is responsible.
b) The contractor shall remedy the damage in nature to the exclusion of liability for any depreciation, but he shall in any case be free to pay compensation in money. In any case, the Contractor's liability shall be limited to ? 1,090.09 per metre of furniture.
§ 3
Liability is excluded:
a) for the contents of containers of all kinds, the packing and unpacking of which was not assumed in the contract;
b) for the contents of furniture vans left loaded at the instigation of the Client, unless otherwise agreed;
c) for damage resulting from the natural or defective nature of the goods, such as breakage of or damage to marble slabs, glass, porcelain, mirrors, incandescent lamps, stucco frames, lighting fixtures, lampshades, stove and mechanical works, unless the contractor is proven to be at fault. Special insurance against damage to marble, glass, porcelain, etc. can be taken out.
Liability is also excluded for damage such as excessive stress on the furniture, loosening of glued joints, cracking or blindness of the polish, oxidation, internal spoilage, leakage or spillage as well as the effects of the weather.
d) 1. for damage to precious metals, jewels, precious stones, money, stamps, coins, securities of any kind, documents and deeds;
2. for functional damage to electrical appliances, such as washing machines, radio, television, EDP or similarly sensitive appliances;
3. for damage to plants or animals;
4. for damage caused by explosive, flammable, radiating, self-igniting, toxic, corrosive substances, by oils, greases and animals;
e) for damage to the goods during loading or unloading, roping down and roping up, if their size or weight does not correspond to the space conditions at the loading or unloading point, the contractor has informed the principal or consignee of this in advance and the principal has insisted on the performance of the service.
§ 4
Liability is further excluded:
a) for damage to walls, windows, floors and stair railings if the size and weight of the goods to be transported do not correspond to the space available;
b) for delays, damage and losses caused by failure to provide the means of transport (rail, ship) on time or resulting from traffic incidents for which we are not responsible (e.g. car breakdowns, road conditions);
(c) for meeting fixed deadlines in the event of late receipt of official documents and for information on customs treatment, export regulations or other statutory provisions.
§ 5
a) Liability shall lapse if externally visible defects are not brought to the attention of the contractor in writing immediately upon delivery, and externally non-visible defects at the latest on the sixth day after delivery.
(b) If the contract requires the contractor to pay compensation for the loss of the goods, the compensation shall be the fair market value of the goods of the same kind and quality at the place of delivery at the time when delivery was to be effected; from this amount shall be deducted the amount saved in customs duties and other costs and in freight as a result of the loss.
c) In the case of damage, the compensation shall be based on the difference between the saleable value of the goods in damaged condition and the market value which the goods would have had without the damage at the place and time of delivery; from this amount shall be deducted any customs duties and other costs saved as a result of the damage.
d) For damages due to delayed delivery, the liability of the contractor is in any case limited to ? 109.01 per day, but not more than ? 1,090.09, however.
e) The contractor shall not be liable for damage occurring as a result of the loss of or damage to the goods.
§ 6
For loss and damage occurring during transport by rail, ship or air, the contractor shall fulfil his obligation by assigning his claim against the railway, shipping or airline company.
§ 7
a) The Contractor is obliged to insure the damage that may be caused to the Client by the Contractor during the execution of the order with insurers of its choice at the Client's expense. The policy for the insurance must, in particular in its scope of cover, at least correspond to the Furniture Forwarding Insurance Certificate (Möbel-SVS). The Contractor shall charge the premium for each individual furniture transport contract on an order-related basis and pay it in full to the respective insurers as expenses of the Client exclusively for the furniture forwarding insurance. Upon request, the Contractor shall inform the Client with whom he has taken out the Furniture Removal Insurance.
b) The client submits himself and all persons in whose interest or on whose behalf he acts to all the conditions of the Möbel-SVS.
c) 1. if the furniture forwarding insurance is covered by the conclusion of the furniture SSC, the contractor shall be exempt from liability for any damage caused by this insurance.
covered damage. This shall also apply in particular in the event that the sum insured falls short of the actual value or amount of damage due to a lack of or insufficient declaration of value by the principal.
2. if the contractor has not taken out furniture forwarding insurance in accordance with lit. a), he may not invoke the conditions of carriage for furniture transport vis-Ã -vis the principal.
B. Of the principal
§ 8
The principal shall be liable:
a) for the authenticity, correctness and completeness of the documents handed over;
b) for loss of and damage to the means of transport, accessories and packing materials, insofar as he or auxiliary staff provided by him are responsible for these;
c) for the Contractor's furniture truck including materials in the event of self-loading or self-unloading of the goods to be transported;
d) for the consequences of incorrect information about the weight, content and type of the goods to be transported; the contractor shall not be obliged to verify this. In the absence of express written instructions, the Contractor shall undertake and declare the transport as removal goods within the meaning of the furniture transport tariff of the Professional Association of Freight Forwarders at the risk of the Client;
e) for damage caused by the transport of the objects referred to in § 3 lit. d) par. 4;
f) for all expenses incurred as a result of a transport delay or hindrance which is not the fault of the contractor, such as natural disasters, war, official measures, strike, hindrance of shipping or railways, etc.
XVIII Transport insurance
§ 9
a) The contractor is obliged to insure the goods, provided that a written order to this effect has been submitted, stating the insured value and the risks to be covered.
b) The transport insurance only covers accidents to the means of transport, fire risk, theft, accidents due to force majeure and furniture breakage.
c) Separate insurance may be taken out against breakage of glass, porcelain, etc. as well as against the risk of war, looting and riot.
d) In the event of damage, the contractor shall fulfil his obligation by assigning his claim against the insurance company. If the client insures himself, any claim for damages against the contractor arising from the risks covered by this insurance shall be excluded, i.e. shall not pass to the insurer.
XIX. price calculation*)
§ 10
a) The calculation of costs shall be based on the tariff rates, freight rates and exchange rates applicable at the time of the execution of the removal.
b) If the tariff rates, freight rates and exchange rates decrease or increase from the time of the submitted offer (Annexes 1 and 2) until the execution of the removal, the agreed transport costs shall change accordingly.
§ 11
Particularly to be paid:
a) Transport of pianos, safes and other heavy goods;
b) additional expenses or additional services in the interest of the removal, even without a special order. The type of execution is only at the discretion of the contractor;
c) Installation, decoration, carpentry and cleaning work;
d) Additional expenses due to weather conditions or if the furniture van cannot be driven in front of the house in blocked or torn-up streets,
Similarly, for waiting times of the removal van and the personnel for which the Contractor is not responsible, furthermore reasonable surcharges for carrying the goods on long or unusual routes, insofar as there has been no express consideration of these circumstances in the price agreement, as well as additional costs arising from detours if the direct routes are blocked or unusable;
e) official fees and customs charges as well as any public charges.
*) These provisions shall only apply insofar as they are not opposed by any provisions of cartel law (comment by the Professional Association of Freight Forwarders).
XX. Duties of the principal
§ 12
a) The client shall be responsible for obtaining all documents and permits required for the transport.
b) If the furniture van cannot be unloaded immediately after arrival at the place of destination, the contractor may demand compensation for all expenses and damages resulting from the delayed acceptance and unload and store the goods at the client's expense.
c) When collecting the goods, the principal shall be obliged to check that no object or equipment has been taken away or left standing by mistake.
§ 13
In the case of transports agreed to or from the station or airport, the principal shall take over or hand over both the loaded and the empty swap body, container or liftvan together with the associated inventory. In this case, he shall be responsible for safeguarding the rights vis-Ã -vis the carrier, in particular by arranging for a joint damage report, in the event of other liability.
§ 14
a) The invoice amount is to be paid:
1. for domestic transports before unloading;
2. in the case of transport abroad, before loading.
The contractor is entitled to demand an advance payment.
b) Offsetting or retention against claims of the Contractor shall only be permissible with due counterclaims of the Client which are established in terms of amount and undisputed in terms of reason.
§ 15
If storage is necessary in connection with a move, the storage conditions published by the Association of Freight Forwarders shall apply. If the removal of stored goods is not carried out by the contractor, the contractor shall be entitled to charge compensation based on the furniture transport tariff of the Professional Association of Freight Forwarders.
§ 16
The principal must request the collection of the packing materials handed over to him.
XXI Oral agreements
§ 17
The client bears the risk for the execution of verbally placed orders that are not confirmed in writing by either party.
XXII Limitation
§ 18
All claims against the contractor, irrespective of the legal grounds, shall become statute-barred after six months. The limitation period begins with the knowledge of the entitled party of the claim, at the latest, however, with the delivery of the goods.
XXIII Jurisdiction
§ 19
The place of jurisdiction for all parties involved is determined by the place of the contractor's commercial establishment with which the transaction was concluded.
If, however, the client is a consumer within the meaning of the Consumer Protection Act, Federal Law Gazette No. 140/1979, as amended, and if he has his domicile or habitual residence in Austria or if he is employed in Austria, only the jurisdiction of a court in whose district the domicile, habitual residence or place of employment is located may be established for an action against him pursuant to sections 88, 89, 93 para. 2 and 104 para. 1 Jurisdiktionsnorm (JN).
Storage conditions for furniture transport
XXIV Scope of application
§ 1
a) The storage conditions for furniture transport apply to the storage of removal goods. They shall apply to all operations and related transactions of the warehouse keeper, insofar as they do not conflict with statutory provisions, in particular those for the protection of consumers.
b) The warehouse keeper shall perform his obligations with the due diligence of a prudent businessman.
XXV. Liability
A. Of the warehouse keeper
§ 2
(a) The warehouse keeper shall be liable for loss of or damage to the goods if the loss or damage occurs through his fault during the handling or storage of the goods for which the warehouse keeper is responsible.
(b) The warehouse keeper shall remedy the damage in kind, excluding liability for any depreciation, but shall in any case be at liberty to pay compensation in money. In any case, the liability of the warehouse keeper shall be limited to the amount of the storage charges, but not more than the amount of the storage charges for twelve months.
§ 3
Liability is excluded:
a) for the contents of containers of all kinds, the packing and unpacking of which was not assumed in the contract;
b) for damage resulting from the natural or defective nature of the goods, such as breakage of or damage to marble slabs, glass, porcelain, mirrors, incandescent bodies, stucco frames, lighting fixtures, lampshades, stove and mechanical works, unless the warehouse keeper is proven to be at fault;
c) for damage such as excessive stress on the furniture, loosening of glues, cracking or blindness of the polish, oxidation, internal spoilage, leakage or leaking as well as weathering;
d) 1. for damage to precious metals, jewels, precious stones, money, stamps, coins, securities of any kind, documents and deeds;
2. for functional damage to electrical appliances, such as washing machines, radio, television, EDP or similarly sensitive appliances;
3. for damage caused by explosive, flammable, radiating, self-igniting, toxic, corrosive substances, oils and greases;
4. for damage caused by burglary, extortion or robbery;
e) the number, type and external condition of the stored goods shall be determined by the storage list. If the warehouse keeper proves that the goods were delivered in the same external condition as when they were received, any claim for damages against him shall be excluded.
§ 4
a) Liability shall lapse if externally visible defects are not brought to the attention of the warehouse keeper in writing immediately upon removal from storage, and externally non-visible defects at the latest on the sixth day after removal from storage.
(b) If the contract requires the warehouse keeper to pay compensation for the loss of the goods, the compensation shall, without prejudice to § 2, be equal to the market value of the goods of the same kind and quality at the time of removal from storage.
c) Without prejudice to § 2, in the case of damage, the compensation shall be based on the difference between the sale value of the goods in damaged condition and the fair market value which the goods would have had without the damage at the time of removal from storage.
(d) The warehouse keeper shall not be liable for damage occurring as a result of the loss of or damage to the goods.
§ 5
a) The Warehouse Keeper is obliged to insure the damages that may be incurred by the Principal through the Warehouse Keeper during the execution of the order with insurers of his choice at the Principal's expense. The policy for the insurance must, in particular with regard to its scope of coverage, at least correspond to the Furniture Forwarding Insurance Certificate (Möbel-SVS). The Warehouse Keeper shall charge the premium for each individual furniture storage contract on an order-by-order basis and pay it in full to the respective insurers as expenses of the Principal exclusively for the furniture forwarding insurance. Upon request, the Warehouse Keeper shall inform the Principal with whom he has taken out the Furniture Forwarding Insurance.
b) The client submits himself and all persons in whose interest or on whose behalf he acts to all the conditions of the Möbel-SVS.
c) 1. If the Furniture Forwarding Insurance is covered by the conclusion of the Furniture SSC, the Warehouse Keeper shall be released from liability for any damage covered by this insurance. This also applies in particular in the event that, as a result of a lack of or insufficient declaration of value by the Principal, the sum insured falls short of the actual value or amount of damage.
2. if the warehouse keeper has not taken out furniture forwarding insurance in accordance with lit. a), he may not invoke the storage conditions for furniture transport vis-Ã -vis the principal.
B. Of the principal
§ 6
a) Goods which are flammable or explosive, radiant, liable to spontaneous combustion, poisonous, corrosive, malodorous and generally such goods as give rise to fears of disadvantages for the warehouse or for other stored goods are excluded from storage, except by special written agreement. The same applies to goods which are subject to rapid spoilage or rotting.
b) If such goods are nevertheless stored, the depositor shall be liable for any resulting damage. This liability does not arise if the adverse quality of the goods was indicated to the warehouse keeper when they were handed over for storage and the warehouse keeper did not refuse to accept the goods.
XXVI Warehouse insurance
§7
(a) The warehouse keeper shall be obliged to insure the goods provided that a written order to that effect stating the insured value and the risks to be covered is
is present. A mere statement of value or inaccurate or impracticable
Insurance instructions are not sufficient to establish an obligation to insure on the part of the warehouse keeper.
b) The storage insurance only covers fire, burglary and mains water.
c) In the case of insurance, the claim of the principal against the warehouse keeper arising from the risks covered by the insurance in the event of damage is limited to what the warehouse keeper himself receives paid out by the insurance. The warehouse keeper is entitled to deduct from this any claims he may have against the principal. The Warehouse Keeper shall fulfil his obligation by assigning his claim against the insurance company.
d) If the principal insures himself, any claim for damages against the warehouse keeper arising from the risks covered by this insurance is excluded, i.e. does not pass to the insurer.
XXVII Oral agreements
§ 8
The warehouse keeper accepts no responsibility for compliance with verbal instructions that are not confirmed in writing by either party.
XXVIII. General
§ 9
a) The Client shall receive a warehouse warrant for the stored goods (Annex 1), which must be returned before delivery of the goods. The warehouse warrant is only valid as confirmation of receipt. The warehouse keeper is therefore in particular not obliged to hand over the goods only to the person presenting the warehouse warrant. The warehouse keeper is entitled, but not obliged, to check the legitimacy of the person presenting the warehouse warrant. He is entitled without further ado to deliver the goods to the presenter of the warehouse warrant against return of the warehouse warrant.
b) An assignment or pledge of the rights arising from the storage contract shall only be binding on the warehouse keeper if it has been notified to him in writing by the principal. In such cases, only the party to whom the rights have been assigned or pledged shall be entitled to dispose of the stored goods vis-Ã -vis the warehouse keeper.
(c) The warehouse keeper shall not be obliged to verify the authenticity of the signatures on the documents relating to the goods or the authority of the signatories.
§ 10
a) Storage shall take place in the company's own storage facilities or those of third parties. If the warehouse keeper does not store the goods in his own warehouse, he shall inform the principal in writing of the storage location. If the storage has to take place in a public warehouse, the terms and conditions of the public warehouse shall primarily apply.
b) The warehouse keeper shall only be obliged to secure or guard storage facilities to the extent that such security and guarding is necessary and customary in the locality, taking into account all circumstances. The warehouse keeper shall fulfil his guarding obligation if he has exercised the necessary care in setting, accepting and carrying out the guarding.
c) The principal is free to inspect the storage premises or have them inspected. Any objections or complaints against the storage of the goods or against the choice of the storage premises must be raised by him without delay. If he does not make use of the right of inspection, he shall waive all objections against the manner of storage, provided that the choice of the storage room and the storage have been made with the due care of a prudent warehouse keeper.
§ 11
a) Access to the warehouse is only permitted to the principal or his representative during business hours in the company of the warehouse keeper or appointed employees if the visit is announced at least three days in advance and the warehouse warrant is presented. Visits to the warehouse are not permitted during the first and last three days of each month.
b) If the principal takes any action with the goods, he shall thereafter hand the goods over to the warehouse keeper again and, if necessary, ascertain the number, nature and condition of the goods together with him. Otherwise, any liability on the part of the warehouse keeper for damage ascertained later which, according to the circumstances, may have been caused by the principal's intervention, shall be excluded. The warehouse keeper reserves the right to have the actions which the principal wishes to take with his stored goods carried out by his employees. The costs arising from the inspection or search are to be paid according to the rate applicable in the warehouse keeper's business or, in the absence thereof, according to the prices customary in the locality.
§ 13
The transport of the stored goods to the future home of the Principal or to any other destination shall be carried out by the Warehouse Keeper.
§ 14
In the absence of a special written order, the warehouse keeper shall not be obliged to carry out work for the preservation or conservation of the goods or their packaging.
§ 15
a) The warehouse keeper may terminate the storage contract at any time by registered letter with one month's notice.
b) The Principal may terminate the storage contract at any time without notice, without prejudice to the Warehouse Keeper's claim to storage charges pursuant to § 16.
c) In the first and last three days of each month change, stored goods will not be handed over. The principal shall not incur any additional storage charges as a result.
XXIX Price Calculation
§ 16
a) The storage fee is calculated monthly. Each calendar month or part thereof shall be deemed to be a full month. If the local rates or the local tariffs of the trade change after the price has been agreed, the agreed price shall change accordingly.
b) The costs of storage, stacking and subsequent removal from storage shall be charged separately according to the prices customary in the locality or according to the tariff. Any public charges shall be borne by the client.
c) The storage costs, insofar as they are expenses, are to be paid immediately, otherwise monthly on the first weekday of each month.
d) Offsetting or retention against claims of the Warehouse Keeper shall only be permissible with counterclaims of the Client that are due and have been established in terms of amount and are undisputed in terms of reason.
§ 17
a) The warehouse keeper shall have a right of lien and a right of retention on the stored goods on account of all due claims to which he is entitled against the principal on current account or for other reasons.
b) For pawn or self-help sales, the warehouse keeper may in all cases charge a sales commission of 10% of the gross proceeds.
? upwards
XXX. Limitation
§ 18
All claims against the warehouse keeper, irrespective of the legal grounds, shall become statute-barred after six months. The limitation period begins with the knowledge of the entitled party of the claim, at the latest, however, with the removal from storage.
XXXI. Jurisdiction
§ 19
The place of jurisdiction for all parties involved is determined by the place of the commercial establishment of the warehouse keeper with whom the transaction was concluded.
If, however, the client is a consumer within the meaning of the Consumer Protection Act, Federal Law Gazette No. 140/1979, as amended, and if he has his domicile or habitual residence in Austria or if he is employed in Austria, only the jurisdiction of a court in whose district the domicile, habitual residence or place of employment is located may be established for an action against him pursuant to sections 88, 89, 93 para. 2 and 104 para. 1 Jurisdiktionsnorm (JN).
Furniture Forwarding Insurance Certificate (Möbel-SVS)
Federal Chamber of Commerce
Professional Association of Freight Forwarders
Announcement
According to the "Conditions of Carriage for the Transport of Furniture" and the "Storage Conditions for the Transport of Furniture", published by the Federal Chamber of Commerce, Transport Section, Association of Freight Forwarders, in the "Wiener Zeitung" of 9 August 1947, the liability of the freight forwarder for the furniture handed over to him for transport or safekeeping is limited.
In order to safeguard the possibility for the forwarder's principal to be compensated for damages which may arise during the execution of the contract, the Professional Association of Freight Forwarders has decided to include a compulsory insurance cover for the benefit of the forwarder's principal in the aforementioned conditions, in order to take into account the interests of both parties to the contract.
At its meeting on 13 September 1951, the Association of Freight Forwarders passed a corresponding amendment to the "Conditions of Carriage for the Transport of Furniture" and the "Storage Conditions for the Transport of Furniture", which extended the provisions of the aforementioned conditions with effect from 1 October 1951 and introduced a Furniture Forwarders' Insurance Certificate (Möbel-SVS).
This resolution shall be published three times in the official section of the "Wiener Zeitung"; with the third publication, the wording of the amendment and the furniture amendment shall be made public.
The insurance policy shall be published in the Official Gazette of the Federal Republic of Germany, thus satisfying the requirement of due publication.
The head: Minkus The secretary: Winkler
Annex A to § 7 lit. a) or § 5 lit. a) of the Carriage and Transport Regulations.
Storage conditions
Furniture Forwarding Insurance Certificate
§ 1 Object of the insurance and scope of application
1. the insurance covers the transport of removal goods in a furniture van (furniture trailer, swap body, container, lift van) within the country and to and from abroad, hereinafter referred to as furniture transport.
2. this shall be understood to mean all services in accordance with the furniture transport tariff issued by the Professional Association of Freight Forwarders, including all customary ancillary services.
3. the term removal goods does not refer to new furniture intended for the trade.
§ 2 Policyholder and insured person
1. the insurance is for the account of a third party. The insurance covers the principal or the person who had the insured interest at the time of the event causing the damage or the contractor.
2. the policyholder is the contractor who carries out furniture transport and furniture storage (hereinafter referred to as the Furniture Removal Contractor for short) and works in accordance with the provisions of the Conditions of Carriage for Furniture Transport and the Storage Conditions for Furniture Transport.
§ 3 Scope of the insurance in general
The insurers provide compensation:
1. for such damages for which the removal company is liable to the insured person according to the conditions of carriage for furniture transport or according to the storage conditions for furniture transport. Damage caused by intentional acts, in particular embezzlement and misappropriation by the company owner, his legal representatives, authorised signatories or independent managers of a branch office, shall be deemed excluded.
2. for such damage for which, in addition to the cover mentioned under para. 1, the removal company can be held liable to the insured person on the basis of fault in accordance with the statutory provisions of the ABGB (Austrian Civil Code) and HGB (Commercial Code), within the scope of the
Conditions under § 4. The Insurers waive the objections that the Furniture Removal Company could raise from the provisions on exclusion and reduction of legal liability contained in the Conditions of Carriage for Furniture Transport and the Storage Conditions for Furniture Transport.
(3) If the Furniture Removal Firm uses subordinate forwarding agents or other agents in the course of the execution of the order placed with it, their fault shall also be covered.
§ 4 Scope of the insurance in detail in case of legal liability
The following provisions shall apply in detail to the indemnification of the insurers in accordance with the statutory liability provisions of the ABGB and HGB:
A. Hazards included
1. in the case of furniture transport, compensation will be paid for damage incurred by the insured person due to the fault of the removal firm in the handling of the transport order placed as a result of disposition errors. Disposition errors within the meaning of the insurance conditions are understood to mean in particular:
a) Choice of an incorrect means of transport;
b) missed notification;
c) Misdirection or defective addressing;
(d) incorrect delivery;
e) faulty mediation or complete omission of transport insurance orders
f) Unscheduled storage directly connected with a furniture transport order is also insured for a period of up to 15 days (Sundays and public holidays not included).
2. in the case of bearings, the following in particular shall be replaced
a) Misdelivery of stored goods, loss and damage, unless the exclusion provisions of Section B. Para. 5 come into consideration;
b) faulty arrangement or complete omission of warehouse insurance contracts (fire, burglary and water damage).
3. the insurance only covers valuables, genuine carpets and works of art in the case of both furniture transport and storage if these items are separately notified in writing to the Furniture Removal Company or the storage company within the meaning of the Conditions of Carriage for Furniture Transport or in accordance with the Storage Conditions for Furniture Transport, stating their value. Money and securities are excluded from this insurance in any case.
4. the insurers shall also indemnify claims which have arisen due to culpable failure to exercise recourse, insofar as this has demonstrably caused damage to the client.
5. the insurance shall also cover claims which the Principal does not base on a contract of carriage or warehousing, but on property, tort or unjust enrichment, provided that these claims are directly related to a contract of carriage or warehousing concluded with the Furniture Removal Company.
6. in the event of misloads relating to insured furniture transport or insured furniture storage, the insurers shall reimburse the removal firm for the additional transport costs, including any telegram, telephone and postage charges, which were incurred and had to be incurred in order to mitigate the loss.
Excluded from the insurance cover are:
1. damage caused by the fault of the principal or his agents or by force majeure. Furthermore, damage arising in the event of war or warlike events, acts of government, gang warfare, civil unrest, looting, strike or lockout, unless the policyholder proves that this damage is neither directly nor indirectly related to one of the aforementioned events or their effects.
2. claims which the Principal derives against the Furniture Removal Firm from an agreement which is not customary in the furniture removal business or which are based on an agreement between the Principal and the Furniture Removal Firm, which do not belong to the transactions covered by § 1 or which exceed the legal liability of the Furniture Removal Firm.
3. damage caused intentionally by the company owner, his legal representatives, authorised signatories or independent managers of a branch office. This includes in particular damage caused by embezzlement and misappropriation by the aforementioned persons.
4. damage caused to goods loaded loosely in the wagon, unpacked or inadequately packed, even if they cannot be covered by transport insurance.
5. in the case of storage contracts, damage to the goods which is or could have been covered by fire, burglary and water damage insurance.
6. scuffing damage, polish cracks, glue solutions or scuffing damage, unless this is due to intent on the part of such employees who are not to be regarded as executive employees within the meaning of para. 3.
7. so-called minor damages up to and including ? 36.34 will not be reimbursed.
8. any transport of computer equipment and computer systems. In the course of office relocations, however, IT equipment is insured up to 10% of the sum insured, up to a maximum of ? 7,267.28 of the sum insured.
§ 5 Obligation to pay compensation in the event of damage
1. in the event of damage to or loss of goods, compensation shall be paid for the current value of the goods at the time of the loss event. In the event of loss, damage or breakage of part of an item of property, compensation shall only be paid for the part affected by the loss.
(2) If several causes of loss, namely damage to the goods and financial loss, occur together, the insurers shall indemnify the total loss only
up to the amount of the sum insured, which in all cases constitutes the maximum amount of the obligation to indemnify. In the event of underinsurance, the insurers shall only be liable on a pro rata basis.
§ 6 Maximum limit of the obligation to pay compensation
1. the insurers shall be liable to the extent of their participation for all claims made under this insurance policy in respect of a loss event up to an amount of ?
145,345.67, even if several insured persons were affected by this loss event. If the total claim of several principals exceeds the above maximum amount, the insurers shall only be liable to the individual principals in proportion of the individual values to the total value. In the case of removal goods whose actual value exceeds the maximum liability of ? 145,345.67, the Insurers shall waive their
insurer to the objection of underinsurance.
2. the maximum liability for damage resulting from incorrect arrangement or complete failure to take out transport or storage insurance by the Furniture Removal Company shall be limited to ? 36,336.42.
§ 7 Insurance contract, sum insured
1. each individual transport and storage order is subject to premium.
(2) Every order subject to premium shall be insured for the sum insured corresponding to the value of the goods at the premiums specified in § 8:
(a) The sum insured shall be based on the current value of the household effects and the furniture. The Furniture Removal Firm shall use its best endeavours to ensure that the Principal provides the correct sum insured. If the Principal does not declare the sum insured, the Furniture Removal Firm shall estimate the sum insured. Estimation errors shall not be covered by this insurance and shall not give rise to liability either for the Furniture Removal Firm or for the insurance company.
b) Insurers will only raise the defence of underinsurance on the basis of the sum insured chosen by the mover if the value is at least 20% higher than the estimated value.
§ 8 Premium
The premium rates for each furniture transport and for each furniture storage, including insurance tax, are set out in the premium table.
§ 9 Registration
(1) The Furniture Removal Company shall declare all insured transport and storage contracts to the Companies at the end of each calendar month, at the latest, however, by the 10th of the following month, for the attention of the appointed processing office on the forms supplied by them and at the same time pay the premium payable for them. Transport and storage contracts with an individual value of more than ? 3,633.64 shall be notified by the Furniture Removal Company at the same time as the higher premium.
sum insured, stating the principal and quoting his item numbers on the specification forms supplied by the insurers.
2. transport and storage contracts with an individual value of more than ? 14,534.57 must be notified separately without delay when the order is placed.
3. furniture transports and storage involving valuables, genuine carpets and
Objects of art exceeding the value of ? 14,534.57 per order are to be reported separately immediately upon acceptance of the order, naming these objects and stating their value.
§ 10 Insurers' right to audit
The Insurers are entitled to verify the declarations of the Furniture Removal Firm by inspecting the business books and other documents insofar as they relate to this insurance.
§ 11 Assertion of the claim, obligations of the removal company and the insured person
(1) As the policyholder, the Furniture Removal Company must notify the Companies in writing of any damage without delay, at the latest within six weeks of becoming aware of it, for the attention of the appointed processing centre. The deadline is met by timely dispatch of the notification. In the event of culpable failure to meet the deadline, the companies shall be exempt from payment.
(2) The Furniture Removal Company is obliged to ensure that the damage is assessed in a timely and neutral manner, insofar as it can influence this, and to do its utmost to avert and minimise the damage, taking into account any instructions given by the Insurers; it must provide the Insurers with any information requested and supply any documents that may help to clarify the damage. If the Furniture Removal Company breaches these obligations through gross negligence, the Insurers shall be released from their liability.
3. as soon as the insured has knowledge of this insurance, he is also obliged to ensure that the damage is properly ascertained, taking into account any instructions from the companies; he has the duty to avert or minimise the damage as far as possible. Insofar as the insurers suffer disadvantages as a result of the insured person's breach of the duty to mitigate loss, the insurers shall be released from the obligation to indemnify.
4. the payment of the damage sum shall be made to the insured person as the injured party. However, the removal company shall be deemed to be authorised to receive the claim sum if it has pursued the claim notification and submitted the insured person's settlement declaration.
5. the provisions of § 12 of the Insurance Contract Act shall apply with regard to the limitation of insurance claims and the expiry of an insurance claim rejected by the insurers.
§ 12 Right of recourse
1. the insurers waive their right of recourse against the removal company and its employees. Insofar as the Furniture Removal Company has used subordinate forwarding agents and other agents in the execution of the order given to it, the Insurers waive their right of recourse against those Furniture Removal Companies who have generally subscribed to this insurance policy.
2. however, recourse to the full amount is permitted against anyone who has deliberately caused the damage.
§ 13 Damage participation of the freight forwarder
1. the Furniture Removal Company shall immediately reimburse the Companies, for the attention of the appointed processing centre, 10% of the amount which the
companies have paid per claim, at least ? 36.33, but not more than ? 254,35.
2. if a legal representative, authorised signatory or independent manager of a branch of the Furniture Removal Company has caused the damage through gross negligence, the Furniture Removal Company's share in the damage shall be increased to 20%, at least ? 36.33, but not more than ? 254,35.
The provisions of § 12 para. 2 shall remain unaffected.
§ 14 Duration of the insurance
(1) This contract is concluded for the period from 1 January 1989 to 31 December 1989 with the proviso that it shall be tacitly renewed for a further year at a time if it is not terminated by one of the parties on its respective expiry date by giving three months' notice by registered letter.
(2) Should amendments to this contract be agreed between the insurance companies involved and the Professional Association of Freight Forwarders, these shall replace the previous provisions.
§ 15 Extraordinary right of termination
The Insurers shall be entitled to demand immediate negotiations with the Professional Association of Freight Forwarders on a different fixing of the premium if the paid claims from the total business have reached 80% of the notified premiums. If an agreement with the Professional Association of Freight Forwarders is not reached within 14 days, the insurers are entitled to terminate the entirety of the furniture SSCs with four weeks' notice. In this case, the insurers are obliged to give notice of termination both to the Professional Association of Freight Forwarders and to each individual Furniture-SVS subscriber by registered letter.
2. the insurers are entitled, with the consent of the Association of Freight Forwarders, to terminate individual contracts with three weeks' notice to the end of each month:
(a) if significant deficiencies become apparent in the Furniture Removal Company's operations which the Insurers reasonably require to be remedied in order to avoid loss or damage
but the Furniture Removal Company does not remedy these defects despite setting a reasonable deadline;
b) if the Furniture Removal Company has intentionally breached the premium notification deadline;
c) if the Furniture Removal Company is in arrears with a due premium payment for more than two weeks after receiving a reminder. The reminder must be sent by registered letter and must state the legal consequences associated with the expiry of the deadline.
§ 16 Jurisdiction
(1) The ordinary courts shall have jurisdiction over disputes arising from this contract.
The leading company is authorised by the participating companies to conduct all legal disputes as plaintiff or defendant, also with regard to their shares. A judgment rendered against the leading company shall be recognised by the participating companies as also binding against them.
3. the processing agency commissioned by the companies is entitled to assert the insurers' rights under this contract in its own name.
§ 17 Management Clause and List of Participations
In this insurance policy, the insurers named below participate with the exclusion of joint and several liability with the quotas stated therein. The management is in the hands of Wiener Allianz Versicherungs-Aktiengesellschaft, Vienna.