BIFAlink
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Know your BIFA Standard Trading Conditions 2021: Clauses 9 and 10
After the detailed examination of Clause 8, which was spread over three editions of BIFAlink , we are covering two clauses this month as we reach Clauses 9 and 10
CLAUSE 9 The Company shall be entitled to retain and be paid all brokerages, commissions, allowances and other remunerations customarily retained by or paid to freight forwarders. Comment on Clause 9 This clause applies when the BIFA Member acts as an agent. There is no need for such a clause when the Member acts as a principal because a principal can make as much profit as it can without having to answer to its Customer. The general rule at common law is that an agent should not make a secret profit and should pass on discounts and the like to its principal. It has long since been common for forwarding agents to receive discounts or commission from carriers on certain routes and from insurers. This clause eliminates any doubt that the BIFA Member is entitled to retain such remuneration for its own benefit.
Clause 10(B) The Company shall be entitled at the expense of the Customer to dispose of or deal with (by sale or otherwise as may be reasonable in all the circumstances): (i) After at least 28 days’ notice in writing to the Customer, or (where the Customer cannot be traced and reasonable efforts have been made to contact any parties who may reasonably be supposed by the Company to have any interest in the goods) without notice, any goods which have been held by the Company for 90 days and which cannot be delivered as instructed; and (ii) Without prior notice, any Goods which have perished, deteriorated or altered or are in immediate prospect of doing so in a manner which has caused or may reasonably be expected to cause loss or damage to the Company or third parties or to contravene any applicable laws or regulations. Comment on Clause 10(A) This clause applies when the BIFA Member has an inability to deliver goods in accordance with instructions. That is a different situation from that when a BIFA Member deliberately withholds delivery when exercising a lien – see Clauses 8(A) and 8(B).
At English common law, a carrier is entitled to recover storage expenses incurred by taking care of goods after carriage has ended – Great Northern Rail Co v Swaffield, All ER Reprints [1874-1880] 1065 . This clause widens that common law right of the carrier to that of the BIFA Member in situations where such charges are paid or payable by third parties and adds more to the right to demand payment. Also at English common law, even when goods are declared as being held at owner’s risk at the end of the carriage, a carrier still has a duty to take reasonable care of the goods, failing which it has liability for loss or delay – Mitchell & Others v Lancashire & Yorkshire Rail Co, All ER Reprints [1874-1880] 1298. This clause attempts to “wholly cease” the BIFA Member’s liability when carriage has ended and delivery cannot be made. This cessation of liability does not cover loss or damage arising during carriage or from another breach of duty. Comment on Clause 10(B) The chapeau (unnumbered heading) of this clause conveys a right to dispose of or deal with Goods by sale or otherwise when they cannot be delivered. A very generous time is given for such disposal except in the case of perishable and similar goods for which immediate disposal is necessary.
CLAUSE 10 Clause 10(A)
Should the Customer, Consignee or Owner of the Goods fail to take delivery at the appointed time and place when and where the Company is entitled to deliver, the Company shall be entitled to store the Goods, or any part thereof, at the sole risk of the Customer or Consignee or Owner whereupon the Company’s liability in respect of the Goods, or that part thereof, stored as aforesaid, shall wholly cease. All costs incurred by the Company as a result of failure to take delivery shall be deemed as freight earned, and such costs shall, upon demand, be paid by the Customer.
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February 2023
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