Policy & Compliance
From Page 11 “ The STC are
amendments? What additional risk does this expose the Member to? 2 . The accepted terms must not undermine the fundamental nature of the BIFA STC. Which brings us onto requests for the lien clause to be set to one side or to increase the limits of liability. We have to emphasise that the inclusion of a lien clause in the BIFA STC is essential as it is a valuable tool for Members to ensure that they receive payment. Therefore, with general cargo, it is very unwise to consider removing it. However, some Members handle commodities such as arms and ammunition which would be illegal to sell in the UK – in those circumstances it may be pragmatic to set the clause to one side. Regarding the limits of liability – it has to be remembered that the freight forwarder’s liability is limited to the period when the goods are under its control. For a settlement to be made, it would have to be established that damage/loss had occurred whilst in its care. Cargo owners are best advised that insurance is a better option. Insurance is relatively inexpensive, provides a better scope of cover and settlement of claims is generally easier. The policy holder only has to establish that it has suffered a loss, but not which party is liable. Central pillar The STC are the central pillar of the relationship between these two parties defining individual rights and responsibilities. They must be incorporated as early as possible into the contractual arrangements between Member and customer. If a customer says that they are not fair, emphasise their balanced approach, the freight forwarder may be protected in many ways but it also has many obligations placed on it – the most fundamental being that it has to behave in a professional and diligent manner.
5. Plain language and visibility – Ensure that clear, precise and concise language is used. Also ensure that the recipient of the terms can actually read them. 6. Ensure accessibility – Ensure that the STC are easily accessible and can be downloaded, printed, saved, etc. Where these tips are followed Members can ensure clarity, minimise disputes and enhance enforceability. Other considerations Now we will briefly turn our attention to some other key points and questions that BIFA is regularly asked. The first is a legal point, Members have to be aware that the Unfair Contract Terms Act of 1977 at its core has a test of ‘reasonableness’, which applies to general terms such as the BIFA STC. This includes some guiding points such as whether or not both parties have equal bargaining power, whether or not each party is free to contract elsewhere and to negotiate terms. Where Members have to be especially careful is when dealing with the private individual. Clearly there is likely to be a greater likelihood for an imbalance of power and Members must make every effort to explain at least the most important parts of the STC to such clients. It is essential that the private individual understands them and acknowledges this fact. The other two areas relate to the ‘battle of the forms’ and liens. Regarding the first point, this is where the client submits to the Member either its own terms or modified BIFA terms stating that these will be the contractual terms. If accepted, this action over-rides the original BIFA terms submitted to the contracting party. There are two points to consider: 1. Are Members willing to accept the proposed
the central pillar of the relationship between these two parties de fi ning individual rights and respons - ibilities. They must be incorporated as early as possible into the contractual arrange - ments between Member and customer
BIFA Good Practice Toolbox
12 | January 2024
www.bifa.org
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