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Policy & Compliance


BIFAlink


In determining whether a forwarder has acted as an agent or


a principal, courts may look at factors including: • Terms used in the contract – was the agreement to ‘arrange carriage to...’ or did the forwarder agree to ‘carry to...’?


• How was the relationship described – ‘as agents only’? Would the customer have known that you were using other parties such as carriers?


• The course of prior dealings – did you consistently describe yourself to the customer, the line and the world as the customer’s agent?


• The nature and basis of charging – did you charge a lump sum (indicative of a carrier) or a commission (consistent with agency status)?


• Terms of any carriage documents – were you described as a shipper or as an agent?


April 2021


Behaving as an agent In short, you can call yourself an agent, but what is in a name? You must also behave as an agent. But even these precautions may not offer fail-safe security


against the Merchant Clause. So, what else can be done to clearly define the role of a BIFA


Member as an ‘agent’ rather than a ‘principal’? An ‘endorsement’ may be the best additional protection.


Making the ocean carrier aware through an endorsement that you are acting as an ‘agent’ and are subject to English law, before you book, will provide greater security. However, it has to be said that with online booking systems, in practice using an endorsement will be a challenge. BIFA is grateful to John Habergham of Myton Law for providing this article. www.mytonlaw.co.uk


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