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Policy & Compliance


BIFAlink Who loads or unloads the vehicle?


An unambiguous contractual agreement will minimise the chances of a dispute over the loading or unloading of a vehicle


A recent discussion at the BIFA Legal and Insurance Policy Group highlighted an issue whereby some customers expect the delivering driver to unload the vehicle and also position the goods inside their premises. This could also entail using the customer’s


equipment. This is a subject we have looked at before in BIFAlink, highlighted by a case where a BIFA Member routinely collected export shipments from a UK customer. It was normal for the Member’s driver to position his vehicle at the loading bay of the exporter and wait while the goods were loaded. The difficulty occurred when the staff who


regularly performed the loading had other tasks to attend to and simply told the Member’s driver, “There you are mate, load yourself”. This caused a number of complications for the Member who had subcontracted the driver, who in turn was unsure if the loading was his responsibility. Furthermore, the additional costs and delays involved were disputed by the exporter who did not think it was his responsibility, despite the previous assistance provided.


Damage scenarios There are many possible scenarios where damage could occur to either goods, personnel, loading equipment or the actual premises. Although such loading and unloading happens daily, it is only when something goes wrong that it becomes apparent that there is no clear contractual relationship to pinpoint where liability rests. It is important to consult your liability insurer or


broker whenever you undertake additional work that may be outside your BIFA Standard Trading Conditions. The positioning of heavy boxes within a customer’s premises, or being asked to use the customer’s equipment, are two examples where not only loss or damage to goods should be considered but, additionally, a myriad of liability or health and safety issues. Good practice is to ‘Know your Customer’ and identify possible instances where you are asked


September 2020


to engage in further activity after positioning your vehicle to be either loaded or unloaded. This could be an overarching logistics contract where the responsibilities of both parties are detailed so, in the instance of regular loading, it is accepted by both the forwarder and the customer who should undertake the task. If it is contractually agreed that the exporter is responsible for loading, then ensure it is aware of a general tariff or hourly rates for additional charges that would be applied if your assistance is needed. With Ex Works shipments, extra attention is


needed. It depends on what the terms were in the seller’s contract. If the contract stated Ex Works Incoterms ® 2020, then the provisions of the ICC Incoterms ® 2020 would apply. However, if the contract simply states Ex Works, there could be a different interpretation relying on the traditional interpretation of the term. There is a crucial difference between


traditional Ex Works and Ex Works Incoterms ®. By the former, the goods are not supplied until they are out of (the Latin meaning of ‘ex’) the seller’s premises onto the collecting vehicle. By the latter, the goods are merely placed at the buyer’s disposal at the seller’s premises. Schmitthoff’s Export Trade 10th Edition 2000 states: “It must be stressed, however, that if a


particular sale term is adopted by the parties without reference to any of the published standard set of terms and if a dispute arises, the English court will apply the traditional meaning of these terms, which sometimes differ from the meaning set out in Incoterms ® or Intraterms, or any set of standard terms.” Of course, in practice, it is usually expedient


for the seller to load goods to a collecting vehicle, whatever version of Ex Works is used. The problems arise when there is damage or another dispute.


Overlooked meaning Because the obligations of the seller and buyer are so clearly set out in Incoterms ®, there is a tendency to refer to them as if they always apply. However, ex Works, FAS, FOB, CIF (and C&F) are traditional terms that existed long before Incoterms ® were devised, but their meaning outside of Incoterms ® is in danger of being overlooked. By having an unambiguous contractual


agreement in place the chances of a dispute over loading a vehicle are minimised. BIFA has published a Good Practice Guide to


Logistics Contracts on the BIFA website at: bifa.org > INFORMATION > GOOD PRACTICE TOOLBOX


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