Definition and significance of Fautfracht
The Fautfracht is a term from German freight and transport law and refers to a special form of remuneration for a carrier, which becomes due even if the transport order is not fully or at all performed for reasons outside the carrier’s risk scope. The concept of Fautfracht is primarily regulated in maritime law (§ 595 HGB), but also in land freight law (§ 420 HGB) and inland navigation law (§ 409 HGB). Its purpose is the financial compensation of the carrier for arrangements already made and expenses incurred when subsequent performance of the transport becomes impossible.
Legal foundations of the Fautfracht
General provisions
The Fautfracht is regulated in the German Commercial Code (HGB) in specific provisions for different freight types:
- § 420 HGB: Land freight
- § 409 HGB: Inland shipping
- § 595 HGB: Sea freight
A key prerequisite for the entitlement to Fautfracht is the cancellation or impossibility of carrying out the freight contract after its conclusion, without fault on the part of the carrier.
Requirements for the claim
Conclusion of contract
A valid freight contract always underlies the claim to Fautfracht, under which the carrier was supposed to act according to the agreement.
Subsequent impossibility
The contractually owed transport cannot be carried out because circumstances arise that are outside the carrier’s risk area. Examples include force majeure, official refusal of transport execution, or disturbances originating from the sender’s side (such as default of acceptance).
No fault of the carrier
The claim is excluded if the reason for non-performance lies within the responsibility of the carrier (e.g., lack of means of transport, delay, defects in execution).
Scope and calculation of the Fautfracht
Amount of the Fautfracht
The amount of the Fautfracht is not conclusively regulated by law. It is generally derived from the agreements in the freight contract. In the absence of express provisions, it is often based on a percentage calculation of the agreed freight or the actual expenses of the carrier, provided these are lower.
Deduction of saved expenses
If the carrier receives Fautfracht, unlike the full freight, the saved expenses or other revenues must be credited to him (§ 420 para. 2 HGB). The objective is a balance, taking into account both incurred and actually saved costs.
Examples of saved expenses:
- Fuel and personnel costs
- Toll charges
- Dock and port fees (for sea freight)
Replacement transports
If the carrier accepts another freight order (replacement transaction) instead of the canceled transport, this revenue must also be credited in the context of Fautfracht.
Fautfracht in maritime commercial law
Special provisions according to § 595 HGB
In maritime law, Fautfracht is expressly regulated in § 595 HGB. The claim arises when the sea freight contract is subsequently canceled without fault of the carrier. The claim covers the portion of the freight corresponding to the effort already carried out or provided for transport.
Variations and special features
In maritime freight law, Fautfracht may also arise if, due to circumstances constituting force majeure (e.g., war, blockade, natural disasters), the transport cannot be started or completed and the carrier is not responsible. Here as well, the deduction of saved expenses and alternative benefits is mandatory.
Fautfracht with different modes of transport
Land freight (§ 420 HGB)
The provision of § 420 HGB governs the Fautfracht in land freight law. It is applied in particular when the sender cancels the freight contract or withdraws the assignment due to circumstances that do not stem from the carrier’s risk area.
Inland navigation (§ 409 HGB)
The Inland Navigation Act also refers with § 409 HGB to the legal concept of Fautfracht. The provision contains similar rules as the law on land freight, but with specific adaptations for the inland shipping sector.
Limitation and enforcement
The claim for Fautfracht is subject to the general limitation rules of the respective transport law. For freight claims in general transport law, the limitation period is usually one year from the end of the transport, unless different contractual or statutory rules apply. In judicial assertion of the Fautfracht, the exact calculation of the claim for compensation, taking into account all relevant credits (saved expenses, other earnings) must be demonstrated.
Fautfracht in an international context
In international transport law, the concept of Fautfracht is not universally known or uniformly regulated. In particular, under the international road transport law governed by the CMR Convention, there is no expressly regulated Fautfracht. Contractual adjustments are possible in individual cases, but not mandatory.
Practical examples
Example 1:
A freight forwarder receives a transport order, which is withdrawn for business reasons by the sender two days before the actual start of transport. The freight forwarder has already scheduled vehicles and reserved appropriate staff capacities. For these allocated capacities, Fautfracht may be claimed, provided the freight forwarder is not at fault and appropriate deductions are made for saved expenses.
Example 2:
A seagoing vessel is loaded, but an unexpected blockade prevents scheduled departure. The carrier is entitled to a proportional Fautfracht that covers the legitimate expenses, minus saved costs, provided the blockade is not attributable to his area of responsibility.
Distinction from similar terms
Fautfracht must be distinguished especially from demurrage provisions, damages for breach of contract, and contractually agreed flat-rate cancellation fees. While demurrage is charged for waiting or idle times and damages are aimed at compensating for actual losses incurred, Fautfracht serves as a lump-sum compensation for freight contracts that could not be executed.
Summary
Fautfracht is a central legal instrument for risk allocation between the sender and carrier in German freight and transport law. It applies in cases of subsequent and non-culpable impossibility of performance of the freight contract and constitutes a claim by the carrier for compensation for services rendered and provided, less saved costs. The precise modalities and amount of Fautfracht are derived from statutory provisions and, where applicable, supplementary contractual agreements. The legal situation varies depending on the mode of transport (land, water, sea), with some international differences. The assertion and calculation in individual cases require careful consideration of all relevant circumstances and legal requirements.
Frequently asked questions
When does Fautfracht apply from a legal perspective?
In a legal context, Fautfracht is always present when a freight order—typically in maritime or inland navigation law—is either not performed at all or only partially, and a freight claim nevertheless arises. According to §§ 415 ff. HGB (German Commercial Code) and, where applicable, the ADSp or international conventions such as the Hague-Visby Rules, Fautfracht is a legally mandated compensation mechanism that protects the carrier from financial losses when the party ordering the shipment (shipper/sender) fails to fulfill the obligation to provide the goods for loading or withdraws from the contract without justification. Accordingly, Fautfracht constitutes a contractual or statutory claim to (partial) remuneration, even if the promised transport service has not been fully provided.
What legal requirements must be met for a claim to Fautfracht to arise?
The emergence of a claim to Fautfracht requires certain legal preconditions: First, a valid freight contract must exist. The sender must not provide the goods for transport as agreed, or transport is prevented for reasons attributable to the sender. The prevention must not be due to force majeure or other circumstances for which the carrier is not responsible. Moreover, there must be no mutual withdrawal or cancellation of the contract between the parties, as in that case the legal relationship lapses into an unwinding arrangement instead of triggering Fautfracht. Depending on the contract, mode of transport, and legal system, different modalities for calculating Fautfracht apply, and it is often set as a specific percentage of the agreed freight.
What are the legal consequences of the calculation and payment of Fautfracht for the sender and the carrier?
By virtue of the Fautfracht claim, the carrier is economically secured in the event of partial or complete non-performance of the transport. The carrier receives the agreed or statutory portion of the freight regardless of actual completion of transport and, in return, is not required to provide the transport service. For the sender, this means an obligation to pay the Fautfracht, even if they do not deliver the consignment—except where there are reasons outside their sphere of influence recognized as excusable by contract or by law. According to case law and statute, the carrier loses the remaining freight claim and any further claims for compensation once the Fautfracht has been fully paid, unless there is fault or a claim for damages under general contract law.
To what extent can the claim to Fautfracht be contractually excluded or modified?
In principle, German transport law permits the claim to Fautfracht to be individually excluded or modified as to its amount and requirements in contract negotiations. Many contracts and general terms and conditions (such as the ADSp) contain their own clauses on Fautfracht, for example, to reduce the percentage or to expand/limit the grounds for the claim. However, such contractual provisions must not violate mandatory statutory regulations or public policy, especially where mandatory international conventions apply or an unreasonable disadvantage to one party arises. It is therefore advisable to document any deviating provision explicitly and unambiguously in the contract.
Does Fautfracht apply only in maritime and inland waterway law or also in other modes of transport?
Although the term “Fautfracht” is predominantly used in maritime and inland shipping freight, German freight law (especially §§ 415, 417 HGB) sets out analogous provisions for other modes of transport as well, for example, in land freight law for truck or rail transport. Similar mechanisms also exist in air freight law, although under different names and with adapted requirements. The basic idea—compensation for the carrier in the event of the sender’s breach of contract—applies across modes of transport, although the precise provisions always depend on the individual case and contractual agreement.
What claims and objections are available to the sender in disputes over the payment of Fautfracht?
In the event of a dispute, the sender fundamentally has the option to raise objections against the claim for Fautfracht. These include proof that the failure to accept or deliver the goods was caused by circumstances outside their sphere of influence (e.g., force majeure, official prohibitions, strikes), that the carrier acted in breach of contract, or that a mutual agreement to terminate the contract was reached. In addition, the sender may challenge the amount or proportionality of the demanded Fautfracht, for example, if it is not reasonably related to the carrier’s lost effort. In any case, the sender should document all relevant circumstances and provide substantial evidence, as the burden of proof generally rests on them.
What are the limitation periods for Fautfracht claims in a legal context?
The limitation period for Fautfracht claims is governed by the general provisions of the German Commercial Code for freight claims (§ 439 HGB), which is generally one year. This period usually commences at the end of the day on which the goods should have been delivered or when the contract is deemed terminated. The period may be shortened or extended by choice of law or individual agreement, provided this is legally permitted. In a cross-border context, different limitation periods may apply under international conventions or foreign law. Missing a deadline regularly results in the final forfeiture of the carrier’s claim to Fautfracht.
