The Responsibility of the Freight Forwarder in the Transportation of Goods: A Legal Debate

Introduction

In the complex world of international goods transportation, the role of the freight forwarder is often misunderstood, leading to confusion about their responsibility in case of damage to cargo during transit. Although the freight forwarder plays an essential role in logistical and operational coordination, they are not directly responsible for the transportation of the goods and, therefore, should not be held liable for incidents that occur outside the scope of their duties. This article aims to explore the role of the freight forwarder, outline their legal responsibilities, and argue against the notion that they should be held accountable for damages occurring during transportation.

?

1. The Role of the Freight Forwarder

The freight forwarder is a logistical facilitator who organizes the transportation of goods, offering a range of services that include booking space on ships, coordinating land transportation, handling customs documents, and supervising cargo at critical points of transit. However, the freight forwarder is not the carrier and does not have physical possession of the merchandise, nor control over the transportation itself.

Brazilian legislation and international practices recognize the freight forwarder as an intermediary whose function is to connect exporters and importers with carriers, without assuming responsibility for the risks associated with transportation. This distinction is crucial as it clearly delineates the scope of the agent’s activities and prevents them from being unjustly held responsible for events beyond their control.

?

2. Legal Foundations That Exempt the Freight Forwarder from Liability for Damages

The legal framework governing the activities of freight forwarders in Brazil includes the Brazilian Civil Code (Law 10,406/2002), the Ports Law (Law 12,815/2013), and the Multimodal Transport Law (Law 9,611/1998). These laws clearly define the roles and responsibilities of each actor in the logistics chain, assigning direct responsibility for damages and incidents to the carrier.

?

2.1. Brazilian Civil Code (Law 10,406/2002)

Articles 730 to 733 of the Civil Code are fundamental to understanding the limitation of the freight forwarder’s liability. These articles establish that the carrier is responsible for damages caused to the cargo, whether due to loss, damage, or delays. The freight forwarder, on the other hand, is contracted only to provide auxiliary organization and logistics services, without assuming the risks of transportation.

?

2.2. Ports Law (Law 12,815/2013)

The Ports Law regulates activities in Brazilian ports, distinguishing between port operators, carriers, and freight forwarders. It reinforces that freight forwarders are responsible only for coordinating logistics services and not for the direct execution of transportation or cargo handling.

?

2.3. Multimodal Transport Law (Law 9,611/1998)

The Multimodal Transport Law defines the responsibilities of the Multimodal Transport Operator (MTO), who, unlike the freight forwarder, assumes responsibility for end-to-end transportation, including insurance against damages and losses. The freight forwarder does not qualify as an MTO, and their responsibility is limited to providing intermediary services.

?

3. The Distinction Between Freight Forwarder and Carrier: A Clarifying Concept

Confusion over the freight forwarder’s responsibility often arises from a lack of understanding of the fundamental differences between freight forwarders, NVOCCs (Non-Vessel Operating Common Carriers), and carriers. While the NVOCC acts as a non-vessel operating carrier, issuing its own bills of lading and assuming responsibility for the cargo, the freight forwarder does not take on such a role.

?

3.1. NVOCCs and Carriers

The NVOCC issues transport documents and assumes operational risks similar to those of the carrier, being jointly responsible for damages to the cargo. Carriers, on the other hand, are directly responsible for the physical transportation of the cargo, operating the vehicles and being accountable for incidents that occur during the journey.

?

3.2. The Role of the Freight Forwarder

The freight forwarder, in turn, acts only as a logistics organizer, without assuming possession of the goods or responsibility for transportation risks. They are contracted to plan and coordinate, not to execute the transportation itself. This distinction is essential to prevent the undue attribution of liability.

?

4. Jurisprudence and Precedents that Refute the Freight Forwarder’s Liability

Brazilian courts often exempt freight forwarders from liability in cases of damage to transported goods, reaffirming that the freight forwarder is not a contractual party directly linked to the transportation and, therefore, is not liable for damages.

?

4.1. Relevant Precedents

In several judicial decisions, courts have recognized that the freight forwarder’s liability is limited to their intermediary and logistical coordination functions. Liability is assigned only in cases of proven negligence in performing their specific duties, such as documentation errors.

4.2. Cases of Limited Liability

Cases where the freight forwarder’s liability is limited include situations of delays in document delivery, failures in communication with the carrier, or operational errors that cause delays—but not regarding physical damages to the cargo during transportation. This limitation is a recognition that the freight forwarder does not have control over the physical handling of the goods.

?

5. International Conventions and Global Practices

In addition to Brazilian legislation, international conventions such as the Hague Rules and the Hamburg Rules reinforce that the responsibility for damages to goods lies with the carrier. These conventions were adopted to standardize international transportation practices, protecting the shipper and the consignee, but also clearly delineating the obligations of each party involved.

5.1. Hague and Hamburg Rules

The Hague Rules establish that the carrier must properly care for the cargo from the moment of loading to unloading. The Hamburg Rules expand this responsibility, requiring the carrier to prove that they took all possible measures to avoid damages. In both sets of rules, the freight forwarder is not mentioned as a party responsible for incidents.

5.2. Impact on the Brazilian Market

The adoption of these rules in Brazil reaffirms the distinction between the roles of the freight forwarder and the carrier, reinforcing that the agent’s function is to assist, not to execute the transportation. This differentiation is fundamental to protect freight forwarders from unfounded liability claims.

?

6. The Defense of the Freight Forwarder: Legal and Operational Arguments

To defend the freight forwarder against accusations of undue liability, it is crucial to articulate arguments that highlight their functions and limits.

?

6.1. Well-Defined Contracts

The importance of clear contracts that delineate the responsibilities of the freight forwarder cannot be underestimated. These documents should specify that the agent is not responsible for the physical transportation of the cargo, limiting their obligations to providing logistics and coordination services.

6.2. Proof of Negligence

Assigning liability to the freight forwarder is only valid in cases of demonstrated negligence. Administrative errors, although impactful, do not automatically imply responsibility for damages to the cargo during transportation. This distinction should be emphasized in any litigation.

6.3. Insurance and Protection

Freight forwarders should advise their clients on the importance of obtaining adequate insurance that covers damages and losses during transportation. This guidance reinforces the agent’s role as a logistics consultant and not as directly responsible for the cargo’s integrity.

?

Conclusion

The freight forwarder plays an essential role in the logistics chain, facilitating the transportation of goods efficiently and in an organized manner. However, their function is one of coordination, not execution, and they should not be held liable for damages occurring during transportation. Brazilian legislation, judicial precedents, and international conventions support this distinction, defending the freight forwarder from unfounded liability claims. Protecting this figure is crucial for the integrity of the logistics system and the legal security of all parties involved in international trade. This article, therefore, serves as a plea for the proper recognition of the role of freight forwarders and the importance of maintaining a clear distinction of responsibilities in the transportation chain.

Author: LUIZ FERNANDO LOPES

Managing Partner of the Asterion Group (NORTH STAR/ATRIA/SUNLOG). Lawyer and Business Administrator, postgraduate in international business from FGV.