In commercial practice, the line between freight forwarding and carriage is becoming increasingly blurred. Freight forwarders offering comprehensive logistics services often do not realize that courts may treat them as de facto carriers and hold them liable under the rules applicable to carriers. This article outlines the situations in which such liability may arise and how forwarders can protect themselves.
Freight forwarding vs. carriage – the key distinction
According to the Polish Civil Code (Articles 794-804), a forwarding contract involves organizing transport, not performing it. The forwarder’s liability is narrower than that of a carrier and usually limited to errors in selecting the carrier or in transport organization.
In contrast, a carrier (under Article 774 of the Civil Code and the CMR Convention in international transport) is liable for loss, damage, or shortage of goods from the moment they accept the cargo until delivery. This is strict liability.
When a freight forwarder is liable as a carrier?
Courts increasingly examine the actual actions of the freight forwarder. If certain conditions are met, they may be deemed a carrier. These include:
- issuing a CMR consignment note with themselves listed as the carrier,
- accepting a transport order without clearly stating they are acting solely as a forwarder,
- using the term “carrier” in documentation,
- managing and overseeing the transport process independently.
In such cases, the freight forwarder is considered to be acting as a de facto carrier.
How to manage this risk?
Clearly define your role in contracts
All forwarding agreements should explicitly state that the forwarder is acting as a logistics organizer, not as the executing carrier. Avoid wording that implies you are providing transport directly.
Transport documentation
A forwarder should not be named as the carrier in the CMR. All documents must correctly identify the actual carrier, especially in international shipments.
Clear client communication
Avoid language such as “we will deliver” or “we transport” if the service is solely forwarding.
Contractual clauses and insurance
Use clauses that exclude or limit liability where legally permissible. Maintain forwarder’s liability insurance and confirm coverage by chosen subcontractors.
Document due diligence in subcontractor selection
Keep references, certificates, and carrier insurance records. If a dispute arises, this can help demonstrate a lack of negligence in selection (culpa in eligendo).
As logistics services become more complex, it is increasingly common that a freight forwarder is liable as a carrier even when they do not perform the transport. That’s why clear documentation, precise communication, and solid contractual safeguards are essential. Every company in the logistics and transport sector should regularly review its agreements, procedures, and practices in light of current case law to avoid costly liability.
