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Customs is a duty of the carrier

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Legal news
calendar 6 November 2022
globus Denmark

Who is liable for a botched customs procedure when the carrier and the shipper have miscommunicated? And on what basis?

This month’s case concerns a delivery of a consignment of goods from Switzerland to Sweden. The cargo arrived without the proper customs documents having been presented at the border between Switzerland and Germany and so the goods attracted customs duty and VAT.

The case arose because once at the border, the driver delivered the documents to what he thought was the customs, but got the documents back without the usual stamps. The driver contacted his dispo thereafter, who contacted the contracting carrier for instructions. In the ensuing e-mails, the contracting carrier instructed the performing carrier to proceed to Sweden due an apparent misunderstanding between the two.

The performing carrier was made to pay the duty and claimed an indemnity from the contractual carrier due to unclear instructions. The contractual carrier rejected this and argued that the performing carrier was to be able to complete customs formalities itself.

The court had to decide what duties a shipper - here the contracting carrier - has when instructing a carrier and providing information about the goods.

The court also had to decide whether the situation concerned the shippers duty to provide correct documents and information. This includes oral instructions, e-mails etc. as the carriage proceeds. Or whether the issue concerned the carrier’s liability for mishandling the customs documentation provided.

The importance of this was that the shipper is strictly liable for the former, whereas the carrier must disprove liability for the latter.

The court: the carrier’s claim failed

The court found the rules concerning mishandling of customs documentation applied to the case. It followed that the performing carrier had to prove that it had not made any error in order to recover its loss.

The carrier could not prove this because the court found that the driver had probably gone to the wrong office at the border and had only had the Swiss road tax handled. The driver had therefore made an error.

The court also found that the e-mails exchanged were not unclear and showed that the driver was unsure whether the customs procedure had gone as it should. The driver and carrier had not clarified this properly and so the carrier could not prove that it has not made an error.

IUNO’s opinion

The case shows that it is up to the driver to ensure that customs procedures are handled correctly and if this fails, it is for the carrier to show that it is not liable. In cases where the customer may perhaps have contributed to this, it is insufficient to exonerate the carrier, who is responsible for having any doubts clarified during the customs procedure.

IUNO recommends that carriers ensure that they and their drivers have clear instructions on customs and that these are fully understood customs.

The case arose because once at the border, the driver delivered the documents to what he thought was the customs, but got the documents back without the usual stamps. The driver contacted his dispo thereafter, who contacted the contracting carrier for instructions. In the ensuing e-mails, the contracting carrier instructed the performing carrier to proceed to Sweden due an apparent misunderstanding between the two.

The performing carrier was made to pay the duty and claimed an indemnity from the contractual carrier due to unclear instructions. The contractual carrier rejected this and argued that the performing carrier was to be able to complete customs formalities itself.

The court had to decide what duties a shipper - here the contracting carrier - has when instructing a carrier and providing information about the goods.

The court also had to decide whether the situation concerned the shippers duty to provide correct documents and information. This includes oral instructions, e-mails etc. as the carriage proceeds. Or whether the issue concerned the carrier’s liability for mishandling the customs documentation provided.

The importance of this was that the shipper is strictly liable for the former, whereas the carrier must disprove liability for the latter.

The court: the carrier’s claim failed

The court found the rules concerning mishandling of customs documentation applied to the case. It followed that the performing carrier had to prove that it had not made any error in order to recover its loss.

The carrier could not prove this because the court found that the driver had probably gone to the wrong office at the border and had only had the Swiss road tax handled. The driver had therefore made an error.

The court also found that the e-mails exchanged were not unclear and showed that the driver was unsure whether the customs procedure had gone as it should. The driver and carrier had not clarified this properly and so the carrier could not prove that it has not made an error.

IUNO’s opinion

The case shows that it is up to the driver to ensure that customs procedures are handled correctly and if this fails, it is for the carrier to show that it is not liable. In cases where the customer may perhaps have contributed to this, it is insufficient to exonerate the carrier, who is responsible for having any doubts clarified during the customs procedure.

IUNO recommends that carriers ensure that they and their drivers have clear instructions on customs and that these are fully understood customs.

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Mads

Poulsen

Partner

Aage

Krogh

Partner

Lars

Rosenberg Overby

Partner

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The team

Aage

Krogh

Partner

Ida

Thune Ikkala

Legal advisor

Joachim

Sieverts Nielsen

Associate

Lars

Rosenberg Overby

Partner

Mads

Poulsen

Partner