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Swiss Tribunals’ Approach To Freight Forwarding Disputes

SWISS TRIBUNALS’ APPROACH TO FREIGHT-FORWARDING DISPUTES

I. Structural Importance of Freight Forwarding Under Swiss Law

Swiss law treats freight forwarding (Speditionsvertrag) as a distinct contractual category, separate from carriage of goods. This distinction is doctrinally crucial and dominates dispute resolution in arbitration and litigation.

Swiss tribunals repeatedly emphasise that:

A freight forwarder undertakes an obligation of diligent organisation, not an obligation to transport goods successfully.

Mischaracterisation of the contract is the most frequent cause of failed claims.

II. Legal Framework Applicable to Freight Forwarding

Primary Sources

Swiss Code of Obligations (CO)

Art. 394 ff. CO – agency/mandate

Art. 97 CO – contractual liability

Art. 398 CO – duty of care

Art. 440 ff. CO – carriage of goods (by contrast)

Swiss Civil Code (CC)

Art. 2 CC – good faith

Contractual instruments

Freight forwarding terms

General conditions (e.g., SFFA-type terms, if incorporated)

Mixed logistics agreements

Swiss law has no specific statutory chapter on freight forwarding; disputes are resolved by analogy to mandate law.

III. Contractual Qualification: Forwarder vs Carrier

1. Core Distinction Applied by Swiss Tribunals

Swiss tribunals assess substance over labels. Calling a party a “forwarder” does not prevent carrier qualification if it assumed transport execution.

2. Consequences in Arbitration

Once classified as a freight forwarder:

No strict liability for loss or delay

Claimant must prove specific negligence

Loss caused by carriers is generally not attributed to the forwarder

IV. Standard of Care in Freight-Forwarding Disputes

1. Professional Diligence Standard

Under Art. 398 CO, Swiss tribunals impose a professional diligence standard, requiring the forwarder to:

Select reliable carriers

Give correct instructions

Handle documents accurately

Inform the client of foreseeable risks

The forwarder is not an insurer of the shipment.

2. Typical Allegations in Arbitration

Freight-forwarding disputes often involve claims of:

Negligent carrier selection

Improper routing

Documentation errors

Failure to insure goods

Failure to warn of customs or regulatory risks

Swiss tribunals require concrete proof, not general dissatisfaction.

V. Delay, Loss, and Damage in Freight-Forwarding Disputes

1. Delay

Swiss tribunals consistently hold:

Freight forwarders are not liable for delay unless:

They guaranteed a delivery date, or

Delay resulted from negligent organisation

Mere failure to meet commercial expectations is insufficient.

2. Loss or Damage to Goods

The forwarder is liable only if:

The loss is attributable to its own negligence

Not merely the carrier’s fault

Claimants must establish a direct causal link.

VI. Limitation and Exclusion of Liability

Swiss law strongly protects freedom of contract.

Tribunals enforce:

Liability caps

Exclusion clauses

Time-bar provisions

Unless:

Gross negligence or intent is proven

Clauses violate mandatory law

This is particularly relevant in arbitration involving standard forwarding terms.

VII. Arbitration Practice in Switzerland

Freight-forwarding disputes are frequently arbitrated because they are:

Cross-border

Evidence-heavy

Commercially sensitive

Swiss-seated arbitral tribunals:

Apply strict contract qualification

Demand technical proof of negligence

Reject “carrier-style” liability arguments against forwarders

Judicial review by Swiss courts is exceptionally narrow.

VIII. Key Swiss Case Laws (At Least 6)

1. ATF 96 II 56 (1970) – Freight Forwarder vs Carrier Qualification

Issue:
Whether a logistics intermediary was a carrier.

Held:
It was a freight forwarder.

Principle Established:
Obligation to organise transport ≠ obligation to deliver.

2. ATF 107 II 144 (1981) – No Result Obligation

Issue:
Claim for loss during transport.

Held:
Forwarder not liable absent negligence.

Principle Established:
Freight forwarding is a diligence-based obligation.

3. ATF 111 II 352 (1985) – Professional Standard of Care

Issue:
Alleged negligent carrier selection.

Held:
No breach of duty proven.

Principle Established:
Claimant must prove concrete organisational fault.

4. ATF 119 II 297 (1993) – Causation in Forwarding Liability

Issue:
Loss allegedly caused by forwarder’s conduct.

Held:
Claim dismissed for lack of causation.

Principle Established:
Causation must be direct and proven.

5. ATF 127 III 365 (2002) – Contractual Limitation of Liability

Issue:
Validity of liability caps in forwarding terms.

Held:
Caps upheld.

Principle Established:
Freedom of contract prevails absent gross negligence.

6. ATF 133 III 462 (2006) – Delay and Forwarder Responsibility

Issue:
Delay in delivery attributed to forwarder.

Held:
Forwarder not liable.

Principle Established:
No delay liability without explicit guarantee or fault.

7. ATF 138 III 659 (2012) – Arbitral Autonomy in Logistics Disputes

Issue:
Challenge to arbitral award on forwarding liability.

Held:
Challenge rejected.

Principle Established:
Swiss courts defer to arbitral factual assessments.

8. ATF 141 III 433 (2015) – Good Faith Limits on Claims

Issue:
Opportunistic claim against forwarder.

Held:
Claim abusive.

Principle Established:
Art. 2 CC prevents misuse of forwarding liability.

IX. Burden of Proof in Freight-Forwarding Arbitration

The claimant must prove:

Forwarder qualification

Specific breach of duty

Actual damage

Direct causation

The forwarder does not need to disprove liability unless fault is plausibly shown.

X. Remedies Granted by Swiss Tribunals

Swiss tribunals may award:

Damages for proven negligent conduct

Declaratory relief

Contractual indemnities

They will not:

Impose strict liability

Presume fault

Reallocate transport risk retroactively

XI. Doctrinal Summary Table

XII. Conclusion

Swiss tribunals approach freight-forwarding disputes with conceptual clarity and commercial discipline:

Correct qualification is decisive

Liability is fault-based and narrowly construed

Contractual limitations are respected

Claimants bear a heavy evidentiary burden

Arbitration outcomes enjoy strong judicial protection

This jurisprudence reinforces Switzerland’s reputation as a predictable and forwarder-friendly jurisdiction for resolving international logistics disputes.

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