Civil Law Versus Common Law Concept of Freight Forwarders
Abstract
Present research paper is focused on the comparative aspects of freight forwarders. This paper begins with a theoretical analysis of the “representation doctrine,” and explores the status of the freight forwarder in Germany, United Kingdom and United Stated of America. We focused our attention on the liability of the freight forwarders towards the principal and the third party in civil and common law systems.Observing the existing legislation, judicial and arbitration practices, we present the advantages and disadvantages of the two divergent systems of freight forwarders: German legal system versus British and American legal systems/Continental versus Anglo-Saxon legal systems. The main core of this topic is “the concept of representation,” where the place of the freight forwarder is important. We also analyze the justification of Anglo-Saxon model of freight forwarder with accent on the non-vessel operating common carrier (hereafter NVOCCs), as the most sophisticated model of freight forwarder in global terms.
This paper also presents the legal repercussions of the unsettled status of the freight forwarders vis-à-vis any third person and his principal. Regarding this issue, economic effects have never been the subject of discussion. Just a superficial examination of this topic is enough to conclude that each type of representation leads to achieving one objective and it is - transferring the economic effects of representation toward the principal.
Disagreements escalate in the field of obligations regarding the questions: which of the three subjects is in the legal relation and with whom? Who can be a plaintiff or defendant in the civil procedure? Is the existence of a uniform concept of representation justified? Finally, is it possible to apply the same legal standards in common and civil law systems for ascertaining the liability of the freight forwarder in particular legal systems?
The responses to all of these questions have a great impact on determination of freight forwarders liability. The impact of globalization definitely changed the position of the freight forwarder. So, which of the two systems offers a more applicable legal regime for freight forwarders? Is it the civil law or common law system, or is it the case that in the field of freight forwarders boundaries between these systems are not as great as in many other segments of law.
Key words: freight forwarder, representation, disclosed and undisclosed, direct and undirect representation, non-vessel operation common carrier.
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