IS THE FORWARDER’S LOAD SECURING PROTOCOL CORRECT?
A so-called “Load Security Protocol” can be drawn up in order to ensure the safety of loads being transported. This will contain all the load securing requirements that are covered by European standards. But can a shipper draw up such securing requirements properly himself? And what are the legal consequences of such a protocol? For who is actually responsible for ensuring that the cargo is secured properly? Our cargo securing expert Niels Bouwmeester provides answers to these questions in his blog.
LOAD SECURITY PROTOCOL
In my experience, it is becoming increasingly common for the shipper (forwarder) to draw up a load security protocol himself. This is usually a brief document which does not always contain the right information. In this document, the forwarder does ‘require’ certain things from the carrier. Such requirements include the carrier having to use an XL vehicle, lashing straps with an STF of 500 daN, stanchions, etc. Because a transport company will often work for several customers, a forwarder can make things extremely difficult for the transport company by having a particular set of requirements. In addition, those requirements are often not even necessary in order for the load to be secured correctly. If a transporter has well-trained personnel, he will quickly be able to assess and refute those requirements.
Here is an example of a load securing protocol from EN 12195-1:2010
SEVERAL POSSIBLE WAYS TO SECURE A LOAD CORRECTLY
An XL approved vehicle, stanchions and 500 daN lashing straps are all aids for securing loads faster, saving the transport company time. That does not mean that if these aids are not used, the load cannot be secured properly. The same load can also be secured without an XL vehicle and using 350 daN lashing straps. So there are several ways for securing a load correctly.
WHO IS RESPONSIBLE FOR ENSURING THAT A LOAD IS SECURED CORRECTLY ACCORDING TO THE DUTCH LAW?
I also think that if a shipper draws up such a load security protocol, he is unaware of the legal consequences. For it is the shipper who is legally obliged to load the vehicle and stow cargo, unless the parties agree otherwise. That is why it is so important for shippers to be well-trained in cargo securing.
Some of the responsibilities from the 2002 General Conditions of Transport (AVC) are summarised below:
The shipper is obliged to load and stow the agreed goods in or on the vehicle and to have them unloaded, unless the parties agree otherwise or the nature of the intended carriage dictates otherwise, taking into account the goods to be carried and the vehicle provided.
The carrier may also terminate the agreement if the loading and/or stowing is/are defective or if there is overloading, but not after the shipper has been given the opportunity to rectify the defect or overloading. If the shipper refuses to rectify the defective loading and/or stowing or overloading, the carrier may either terminate the agreement or rectify the defect and/or overloading himself; in both cases, the shipper is obliged to pay the carrier an amount of € 500, unless the carrier proves that the losses incurred as a result exceed this amount.
The carrier is obliged to check the loading, stowing and any overloading carried out by or on behalf of the shipper, circumstances permitting. If he is of the opinion that the loading or stowing is defective, he is obliged to indicate this on the consignment note, without prejudice to the provisions in Article 4(4). If he is unable or not given the opportunity to fulfil his obligation to carry out an inspection, he can indicate this on the consignment note.
WHAT DOES THAT MEAN IN TERMS OF LOAD SECURING IN PRACTICE?
The most important main rule, regarding who is responsible for cargo securing, appears in Art. 4(1e): the shipper is obliged to carry out loading, stowing and unloading. This changes if the parties agree otherwise and record the arrangement in writing.
Then there is the second main obligation regarding loading, stowing and any overloading covered in Art. 9(5). This states that the carrier (in fact the driver) is obliged to check the loading and the stowing carried out by the shipper. In addition, the carrier is obliged to check for overloading.
In short, that means:
The shipper must carry out the stowing, which must be checked by the carrier. If the driver finds that the stowing is defective when he carries out his check, the carrier may cancel the transport agreement. But he can only do that if he has given the shipper the opportunity to rectify the defective stowing (art. 4(4)).
Should the shipper refuse to rectify the defective stowing, then the carrier has two options:
1. he can terminate the transport agreement (i.e. not proceed to transport the load)
2. he can rectify the defective stowing himself.
With both options, a carrier may claim at least € 500 from the shipper. I just don’t think this happens in practice. Because work is work and a carrier would rather not argue with a customer and risk him going elsewhere for his transport services, which he could do quite easily.
Specialist training on cargo securing can also provide a solution, for forwarders too!