for heavy transport and crane work
General Terms and Conditions of the German Federal Working Group Heavy Transport and Crane Work
AGB-BSK Crane and Transport
The German Federal Working Group Heavy Transport and Crane Work (BSK) recommends but does not require that its members apply the following General Terms and Conditions of Business of the BSK when conducting business with their customers/contractors. The addressees are free to follow this recommendation or to apply other general terms and conditions of business.
I. GENERAL TERMS
1. All our crane and transport services, as well as basic assembly work, shall be based on the following terms and conditions except where these conflict with mandatory statutory provisions (e.g. German Commercial Code [HGB] or CMR, CLMI/CLNI, CIM/COTIF or Montreal Convention)
2. Crane services as defined in these terms and conditions are divided into two standard service types:
2.1 Service type 1 – Crane hire
Crane hire constitutes the provision to the customer of hoisting equipment, together with operating personnel, for use in the execution of work in accordance with the customer's instructions and arrangements.
2.2 Service type 2 – Crane work
Crane work means the transportation of goods, in particular hoisting, moving and relocating loads and/or persons for work purposes using a hoisting device, and refers to the execution by the contractor of one or more agreed hoisting manoeuvres in accordance with the latter's instructions and arrangements. This also includes in particular isolated instances of heavy goods handling using a crane.
3. Transport services as defined in these terms and conditions of business constitute the commercial carriage of goods of any kind and the movement or relocation of goods, in particular using specialist transport equipment such as heavy-duty rollers, caterpillar tracks, air cushions, hydraulic lifting gear and lifting portals, or similar (known as ground and cross conveyors), including interim storage associated with the transportation. Heavy goods are routinely transported unpackaged and on an open deck. The contractor shall only be responsible for packaging and covering the load with tarpaulins, and for loading, stowing, lashing and unloading, where this is explicitly agreed.
4. Where expressly agreed, basic assembly and disassembly work shall form part of the crane or transport service. This shall include fitting together or disassembling as well as fastening or releasing the load for the purposes of preparing or carrying out the transportation. Any assembly work which goes beyond these specifications (final assembly, trial run, fine adjustments etc.) shall be subject to the applicable version of the BSK Terms and Conditions of Assembly.
5. The results of site inspections and special agreements, e.g. with regard to loading and unloading points, crane location etc., must be recorded by the parties.
6. Contracts concerning the execution of large-scale and heavy transports or the moving of cranes on public roads shall require permission or approval from the competent authorities, in particular with regard to Section 18 I 2 and Section 22 II.IV and Section 29 III and Section 46 I No. 5 of the German Road Traffic Regulations (StVO) and Section 70 I of the German Road Traffic Licensing Regulations (StVZO). These contracts shall be concluded exclusively subject to the condition precedent that the required permission and/or approval is granted in good time.
7. If traffic controlling measures (police escort etc.) or other requirements and auxiliary conditions are imposed by the authorities for the purpose of maintaining road safety and unimpeded traffic circulation and/or protecting road surfaces, these contracts shall also be concluded subject to the condition precedent that the security personnel is available in good time and that the official safety measures can be implemented in good time. The contractor shall undertake to request the necessary official permits and approvals in good time in accordance with the relevant administrative regulations and to inform the customer immediately of any such requirements and auxiliary conditions with regard to the execution of the transport service, which could hamper or impede the transport procedure. The BSK information sheet entitled "Traffic Controlling Measures" shall apply in this respect.
8. The contractor shall be entitled to employ other companies to fulfil the agreed contractual obligation unless otherwise agreed.
9. The contractor shall be entitled to withdraw from the contract without this giving rise to any claims for damages, if careful examination prior to or during the deployment of vehicles, equipment or apparatus of any kind reveals that significant damage to third-party and/or own property and/or assets, or personal injury, is very probably unavoidable, despite all reasonable efforts to prevent such damage. The exclusion of claims for damages shall not apply if the contractor has failed to exercise the due care of a prudent businessman (carrier). In the event of withdrawal, the remuneration for crane services shall be calculated on a pro-rata basis. In the case of transport services, the statutory provisions shall apply.
10. The contractor shall be entitled to interrupt the deployment immediately in the event of impending danger to equipment, load, personnel and/or third parties. Interruptions caused by weather conditions shall not reduce the entitlement to remuneration, taking into account any resulting cost savings, if the weather-related problems could not be overcome despite reasonable efforts.
11. The service provided by the contractor shall be determined by the crane or transport order and/or the agreements in the international consignment note. Only where explicitly agreed, the contractor shall also be required to supply the necessary auxiliary personnel, instructors and other personnel and any necessary riggers at the expense of the customer. Unless otherwise agreed, billing shall be based on units of time (hourly or daily rates). Unless otherwise agreed, the obligation to pay remuneration shall begin from the time that the hoisting or transport vehicle leaves the contractor's depot and shall end upon its return. If hourly or daily rates have been agreed, these shall also apply to the time spent travelling to and from the site of operation and to the time spent setting up the equipment. Hourly rates shall be charged per half hour or part thereof, and daily rates shall be charged per working day or part thereof. Unless otherwise agreed, fees and costs to cover official expenditure and all procurement costs and costs connected with official requirements and other auxiliary provisions, as well as police escort fees or costs for the company's own transport safety measures and other costs for safety measures ordered by the authorities, shall be borne by the customer. The agreed amounts shall be understood to be exclusive of VAT, which shall be paid to the contractor at the applicable statutory rate.
II. SPECIFIC TERMS
Obligations of the contractor and liability
12.1 If the main service to be performed by the contractor consists of providing to the customer, as agreed, a hoisting device together with operating personnel for use in the execution of work in accordance with the customer's instructions and arrangements, the contractor shall be under an obligation to provide a hoisting device which is suitable both in general and specific terms, which has been tested and approved according to TÜV (Technical Inspection Association) standards and UVV (Accident Prevention) regulations in accordance with the relevant statutory provisions and standard engineering practice, and which is ready for operation. The contractor shall only be liable for the supplied personnel within the scope of the principles of fault in selecting an agent.
12.2 The contractor shall not be liable for failure to provide the equipment in good time in the event of force majeure, strike, road closure or other unavoidable events, unless the contractor could have averted their consequences by exercising due care and attention.
12.3 In all other cases of failure to provide the equipment in good time, the liability of the contractor – except in the case of intent or gross negligence – shall be limited to damage which is foreseeable and typical for this kind of contract.
Crane work and transport services
Obligations of the contractor and liability
13. The contractor shall undertake to execute all contracts awarded to him in a proper and professional manner using all the means and technical facilities at his disposal and in compliance with the relevant standard engineering practice.
14. The contractor shall undertake in particular to use means of transport and hoisting devices which are suitable both in general and specific terms, which are ready for operation, safe to operate and tested and approved according to TÜV standards and UVV regulations in accordance with the applicable provisions. Furthermore, the contractor shall undertake to provide operating personnel (crane operator and driver) who are suitable both in general and specific terms and who are familiar with the principles of operation of the means of transport and/or the hoisting device.
15.1 If the main service to be performed by the contractor consists of crane work and/or the provision of transport services, this work shall be subject to the statutory regulations governing the freight business, unless otherwise stipulated in these General Terms and Conditions of Business. In accordance with these regulations the liability of the contractor shall be limited to 8.33 Special Drawing Rights (SDR) per kilogramme of the damaged or lost goods.
15.2 The contractor shall waive the right to plead limitation of financial liability in accordance with section 15.1 for damage to goods up to a maximum of EUR 500,000 and for other financial losses up to a maximum of EUR 125,000, per loss event in each case.
16. If the customer requires a higher amount than that stated in section 15.2, an express agreement must be made to this effect prior to the awarding of the contract, and the contractor shall be entitled to charge the customer the costs incurred in obtaining insurance for the increased liability.
17.1 The contractor shall only be obligated to insure the goods insofar as an express written request has been submitted in this regard, stating the value to be insured and the risks requiring cover; the mere mention of the value of the goods shall not be deemed to constitute a request to insure them.
17.2 Acceptance of an insurance certificate (policy) shall not signify that the contractor assumes the obligations incumbent on the customer as policy holder; however, the contractor must take all the usual steps to ensure that the right to claim against the insurance remains intact.
17.3 In the absence of any written agreement to the contrary, the contractor shall obtain insurance in accordance with the insurance terms usual at his registered business address.
Obligations of the customer and liability
18. The customer must at his own risk and expense meet all the technical requirements which are necessary to enable proper and safe execution of the contract, and maintain these throughout the period of the deployment. The customer shall in particular be obligated to keep the goods concerned in a condition that is appropriate and ready for execution of the contract. The customer shall also be obligated to state correctly and in good time the dimensions, weights and any special characteristics of the goods (e.g centre of gravity, type of material etc.), as well as the attachment points in the case of crane services.
19. The customer must obtain any necessary authorisations from the owners concerned if required in order to access property owned by third parties, or private roads, paths or spaces, and must indemnify the contractor against third-party claims which might arise as a result of unauthorised use of third-party property.
20. Furthermore, the customer shall be responsible for ensuring that the ground conditions, space availability and other circumstances at the site of operation as well as on the access routes – with the exception of public roads, paths and spaces – will permit proper and safe execution of the contract. The customer shall in particular be responsible for ensuring that the ground at the loading and unloading points and/or the crane location and on the access routes is able to withstand the pressures and other stresses that it will be exposed to. Finally, the customer shall be responsible for stating all the locations of underground cable shafts, supply pipes and other underground lines and cavities which could impair the load-bearing capacity of the ground at the site of operation or on the access routes. The customer must indicate, without special request, the positions and existence of exposed and overhead lines, underground cables, shafts and other cavities, and any other unidentifiable obstacles, which could affect the stability and operational safety of the vehicles at the site of operation, as well as any particular hazardous situations which could arise during execution of the crane work or transport service with respect to the goods to be transported and the environment (e.g. hazardous substances, contamination etc.).
Statements and declarations made by third parties, which are used by the customer to enable fulfilment of his contractual obligations, shall be deemed to be declarations made by the customer himself.
21. Once the contract has been awarded, the customer may not give any instructions to the personnel supplied by the contractor which deviate from the contractual agreements either in nature or in scope or which run contrary to the intended purpose of the contract without first seeking the approval of the contractor.
22. In the event of culpable violation of the aforementioned obligations by the customer, in particular with regard to his obligation concerning preparation, information and co-operation, the customer shall be liable towards the contractor for any damages arising as a result. The regulations stipulated in Section 414 para. 2 of the German Commercial Code (HGB) shall remain unaffected. The customer must indemnify the contractor fully against third-party claims for damages which arise as a result of the violation of obligations on the part of the customer. In the event that the contractor seeks recourse under the Environmental Damage Act (USchadG), or other comparable public-law, national or international regulations, the customer shall indemnify the contractor fully within the internal relationship, insofar as the latter did not cause the damage with intent or through gross negligence.
III. FINAL PROVISIONS
23. The services of the contractor shall constitute advance performance and shall not be eligible for any cash discount deduction. The invoices of the contractor must be paid immediately on receipt following completion of the contract, unless otherwise agreed after the awarding of the contract. Unless the customer is a consumer, the latter shall only be entitled to offset or withhold payment if his counter-claims are undisputed or have been established as final and absolute. For all claims, whether due or not, which the contractor is entitled to assert against the customer in connection with the activities stated in sections 2 to 4, the contractor shall have a right of lien and a right of retention with respect to the goods or other assets at his disposal. The right of lien or retention shall however not extend beyond the statutory right of lien of a carrier and/or lessor and the general right of retention. The contractor may also exercise a right of lien or retention in respect of claims from other contracts concluded with the customer only if these claims are undisputed or have been established as final and absolute or if the debtor’s financial situation puts the claim of the contractor at risk. In place of the one-month period stipulated in Section 1234 of the German Civil Code (BGB) with respect to threatening the sale of a pledge, the period shall be two weeks in all cases. If the customer is in default, the contractor may after threatening the sale freely sell a quantity of the goods and assets in his possession which he deems at his own dutiful discretion to be sufficient to obtain satisfaction. The contractor may in all cases take a sales commission of an amount which is usual for the local area from the net proceeds of the sale of pledged items or self-help sale.
24. The place of performance and place of jurisdiction, also in the event of disputes between merchants concerning cheques and bills of exchange, shall be exclusively the registered place of business of the contractor. All contracts concluded by the contractor shall be subject to German law. The same shall apply in cases where the customer is based outside Germany.
25. The liability exemptions and limitations stipulated in these General Terms and Conditions of Business shall also apply to the staff of the contractor. The same shall apply to actions and omissions by other persons employed by the contractor to assist with the execution of the contract. The liability exemptions and limitations shall also apply to claims not governed by the terms of this contract.
26. Insofar as declarations are required in writing, remote data transmission and any other readable form shall be considered equally acceptable, provided that the author of the declaration is clearly identifiable.
27. Should parts of these General Terms and Conditions of Business be invalid or unenforceable in individual cases for contractual or legal reasons, this shall not affect the validity of the remaining provisions; Section 139 of the German Civil Code (BGB) shall be waived in this respect.