Peter Koletzki Schiffsmakler GmbH
Albert-Einstein-Ring 21
22761 Hamburg
Telephone: +49-40-89 71 99 0
Facsimilie: +49-40-89 71 99 19
E-Mail: info@koletzki.de
Manager: Martin Koletzki
USt.-ID Nr.: DE118588015
Registered: Amtsgericht Hamburg (HRB 32346)
All businesses relations by Peter Koletzki Schiffsmakler GmbH are expressly conditioned upon our general terms and conditions :
Article 1 Scope
(1) These General Terms and Conditions (hereinafter referred to as “General
Terms”) shall apply to any and all types of legal relationship (hereinafter referred
to as “Assignment”) between [name of the ship broker] (hereinafter referred to
as the “Ship Broker”, independent of the legal nature of the Assignment), a
member company of the German Ship Brokers’ Association (Zentralverband
Deutscher Schiffsmakler e.V.) and any other contractual partner which calls upon
the services of the Ship Broker (hereinafter referred to as the “Client“),
regardless of whether the Assignment of the Ship Broker is non-recurring or
continuous.
(2) These General Terms shall apply specifically, but without limitation, to the
Assignment of a Ship Broker as (1) liner agent (including the right to enter into
bills of lading in the name, and/or for the account, of the Client), as (2) port or
canal agent and as (3) sale & purchase broker or chartering broker.
Article 2 Characteristics of Services
(1) In all cases, the Ship Broker shall act on behalf, and for the account, of the Client
unless otherwise agreed in writing.
(2) The Ship Broker is entitled and authorized to take any and all measures which
appear to him to be necessary in order to meet the obligations of the Assignment,
including, without limitation, to entering into market standard contracts with third
parties in the name, and for the account of the Client.
(3) Unless otherwise agreed in writing, any and all offers submitted by the Ship
Broker shall not be binding until the Assignment has become finalized.
(4) In his function as sale and purchase broker or chartering broker, the Ship Broker
shall have the authority to conclude contracts on behalf of the Client unless the
Client has explicitly excluded same.
(5) The Ship Broker is exempted from the restrictions of Article 181 of the German
Civil Code (Bürgerliches Gesetzbuch, BGB).
(6) The Ship Broker is authorized, but not obligated, to collect sums due to the Client
from third parties and to accept payments from third parties for the Client. The
Ship Broker has the right to pay out to the Client any foreign-currency amounts
he has collected for the Client in Euros at the exchange rate valid on the date of
payment.
(7) The Ship Broker is under no obligation to provide financial guarantees or
contracts of surety to third parties for the Client or to make any payments for
which the Client has not provided sufficient cover to the Ship Broker in advance,
or for which the Client has not provided collateral which the Ship Broker, in his
fair judgment, considers to be sufficient.
Article 3 Remuneration, Compensation for Expenses
(1) The Ship Broker shall receive as remuneration for his services an amount to be
agreed upon between the Parties unless otherwise mandatorily provided for in
collective agreements or statutory regulations.
(2) For any and all financial guarantees, sureties or disbursements of the Ship
Broker, the Ship Broker shall be entitled to additionally receive a commission fee
of at least 2.5% of the nominal value of the security provided.
(3) All costs incurred in connection with bank transfers made by, to or for the Client
shall be borne by the Client.
(4) In addition to his entitlement to remuneration and a commission, the Ship Broker
shall be entitled to demand from the Client the reimbursement of any and all
expenses which he has reasonably incurred during the performance of the
Assignment.
(5) The Ship Broker has the right to demand that a reasonable advance be paid for
the expenses set forth in Clause 4.
(6) In the event that a specific currency has not been agreed regarding the Ship
Broker's remuneration, the Ship Broker can, at his option, demand payment in
the currency of the transaction upon which his remuneration (e.g. commission) is
based, or in euros at the exchange rate valid on date of the invoice to the Client.
The Ship Broker can demand compensation for expenses, at his option, in the
currency in which these were incurred or in euros at the exchange rate valid on
the date of the invoice to the Client. Commission claims based on the provision of
security shall be deemed to have arisen in the currency of the relevant security.
(7) The Ship Broker’s claims for payment shall be deemed due upon the receipt of
the Ship Broker’s invoice by the Client. Receipt through electronic channels is
sufficient in this context.
(8) Any payment claims of the Ship Broker which are not settled by the Client within
21 days of the invoice date shall be subject to interest from the date of the
invoice at a rate of 9 percentage points above the base rate valid at the time.
Article 4 Offsetting, Right of Retention, Lien
(1) The Ship Broker is entitled to satisfy his claims at any time from their due date
onwards by offsetting these against counterclaims of the Client.
(2) The Ship Broker is also entitled to satisfy due and payable claims against the
Client, or companies in which the Client directly or indirectly holds a majority
share, or against companies which directly or indirectly hold a majority share in
the Client, doing so from amounts collected by him for the Client (e.g. freight
charges). In addition, the Ship Broker has a right of retention.
(3) Notwithstanding any rights of retention or lien to which the Ship Broker is entitled
on other legal grounds, the parties hereby agree that, in relation to all claims of
the Ship Broker against the Client, the Ship Broker shall have a contractual lien
on any and all assets of the Client which are in, or come into, the possession of
the Ship Broker, independent of the legal basis for same and independent of the
date upon which such claims have arisen.
(4) At his option, the Ship Broker has, after the due date, the right to enforce the lien
by selling the pledged property by way of private sale or public auction if the
Client has not made payment in full, or provided other security to the satisfaction
of the Ship Broker, within 30 days of the receipt of a written reminder setting a
final date for payment of at least 20 days under notification of the subsequent
enforcement of the lien.
Article 5 Liability of the Ship Broker
(1) The Ship Broker shall perform his services with the diligence of a prudent
businessman and shall carefully choose the individuals with whom he entrusts
the performance of his obligations.
(2) Claims for damages, or reimbursement of expenses, of the Client against the
Ship Broker, his official bodies, his employees or other vicarious agents are
excluded unless they arise due to an act committed by the Ship Broker, his
official bodies, employees or vicarious agents, which act constitutes
a. an intentional or grossly negligent breach of duty;
b. a culpable breach of duty resulting in an injury to life, body or health;
c. non-fulfillment of a guaranteed characteristic; or
d. the culpable violation of a fundamental contractual obligation.
Fundamental contractual obligations (cardinal obligations) are deemed
those obligations the proper performance of which is indispensable in
enabling the relevant contract entered into on the basis of these General
Terms to be performed and upon the compliance with which the Client
customarily relies.
(3) The damages for the violation of a fundamental contractual obligation (cardinal
obligation) on the part of the Ship Broker (Article 5 Clause 2 Sub-clause d.) is
limited to such damage as is foreseeable and may typically occur in such
contracts. This shall not apply in the event that the Ship Broker is liable for an
intentional or grossly negligent breach of duty (Article 5 Clause 2 Sub-clause a.),
for injury to life, body or health (Article 5 Clause 2 Sub-clause b.), or for a
characteristic which the Ship Broker has guaranteed (Article 5 Clause 2 Subclause
c.).
Damage is deemed foreseeable if it is the type of damage which can
normally be expected to occur given the breach of the standard obligation.
(4) The risk of incomplete, incorrect or delayed communication of information
between Client and Ship Broker, specifically including, without limitation, the use
of postal or electronic channels, shall be borne by the Client. This shall not apply
in the event of liability arising as set forth in Clause 2 Sub-clauses a. to d. above.
(5) The provisions of the foregoing Clauses 1 through 4 shall not reverse the burden
of proof to the detriment of the Client.
Article 6 Special Liability for Forwarding Services
(1) If the Ship Broker provides forwarding services in conjunction with his
Assignment, his liability in this respect shall be governed by the German Freight
Forwarders’ Standard Terms and Conditions 2017 (Allgemeine Deutsche
Spediteurbedingungen, ADSp 2017). The ADSP 2017 contain lower limits to
liability than the statutory provisions. Clause 23 of the ADSp 2016 limits the
statutory liability for loss of or damage to goods according to section 431 of the
German Commercial Code in the amount of 8,33 units of account per kg to
maximum 1.25 Million Euros per case of damage, and 2 Million Euros per event,
or respectively to 2 units of account kg, whichever sum is the greater, and the
statutory liability in case of multimodal transport that includes a sea carriage to 2
units of account if the localization of the loss or damage event is unknown.
(2) A unit of account within the meaning of this Article 6 is the special drawing right
(SDR) of the International Monetary Fund.
(3) The Ship Broker will provide the Client with the text of the ADSp 2017 without
delay and at no cost for the Client upon request.
Article 7 Time Bar
All claims against the Ship Broker, his official bodies, his employees and his other
vicarious agents shall, independent of legal grounds, become time-barred upon expiry
of one year from the relevant statutory beginning of the period of limitation unless any
of the cases of liability as set forth in Article 5 Clause 2 Sub-clauses a. to d. has arisen.
Article 8 Embargos and Sanctions
(1) The Client warrants that the transaction which is being performed in connection
with the Assignment of the Ship Broker does not violate statutory rules or
regulations, particularly including, without limitation, any economic, trade or
financial sanctions with which the Ship Broker must comply (hereinafter
collectively referred to as “Prohibitive Legislation”).
(2) The Ship Broker shall not be under obligation to perform any Assignments which
violate the Prohibitive Legislation or in relation to which the Ship Broker has
reason to suspect that a violation may occur. In the event of a refusal, the Ship
Broker shall be entitled, notwithstanding the partial or non-performance of the
Assignment, to claim from the Client the reimbursement of any and all expenses
which he has incurred in connection with the Assignment.
Article 9 Dangerous Goods
The Client shall inform the Ship Broker immediately and without delay in writing if the
Assignment involves any items or goods which require special handling in regard to
their receipt, loading, discharge, storage, transport or delivery, or for which notification
or a permit is required. This shall specifically include, without limitation, dangerous
goods as defined under the International Maritime Code for Dangerous Goods (IMDG
Code).
Article 10 Confidentiality
The Ship Broker is required to treat as confidential only such information and data of
the Client which the Client has specifically identified as confidential in writing.
Article 11 Written Form
Any amendments of supplements to these General Conditions or to the contract of
which these General Conditions are an integral part must be made in writing in order to
be valid. This shall also apply to the nullification of or any amendments to the
requirement of the written form.
Article 12 Place of Jurisdiction, Applicable Law, Disputes with Consumers
(1) Any and all disputes between the Ship Broker and the Client arising from or in
connection with an Assignment shall be decided exclusively by the state court
competent at the location of the Ship Broker’s place of business as entered in the
Register of Companies.
To the extent that Art. 31 of the CMR or Art 46 § 1 of the CIM is applicable, the
place of jurisdiction set out in the foregoing sentence shall not be exclusive, but
additional. As far as Art. 39 of the CMR, Art. 33 of the Montreal Convention or
Art. 28 of the Warsaw Convention are applicable, the first sentence of this Clause
shall not apply. Further, the first sentence of this Clause shall not apply if a
different place of jurisdiction is provided for in mandatory statutory law.
(2) As an alternative to the place of jurisdiction agreed in Clause 1, the Ship Broker
is free, based on his own discretion in the individual case, to bring an action at
the state court within the general jurisdiction of the Client.
(3) The Assignment of the Ship Broker shall be governed exclusively by German
law, notwithstanding that the respective services may have been performed or
are to be performed abroad in part or in their entirety.
(4) The Ship Broker does not commit nor is he obliged to participate in Alternative
Dispute Resolution (ADR) to resolve disputes with consumers before an ADR
entity in accordance with the Act on alternative dispute resolution for consumer
disputes (Verbraucherstreitbeilegungsgesetz).