Legal | Tax | Compliance
Legal | Tax | Compliance
The Federal Supreme Court considers key liability limitations in the GC Spedlogswiss to be unusual – with consequences for freight forwarders and their customers.
The Federal Supreme Court decision 4A_287/2024 of 2 July 2025 has caused a stir in the transport and logistics sector. The case arose from a pharmaceutical shipment in which two parcels were mixed up by the forwarder and each sent to the other destination. As a result, the goods had to be destroyed. The freight forwarder relied on the liability limitation in the GC Spedlogswiss – but the Court held that these general terms had not been validly incorporated into the contract. And even if they had, the liability provisions were deemed “unusual” and therefore unapplicable.
The Court criticised the manner in which the forwarder communicated its general terms and conditions: references at the bottom of an email in «microscopically small» print were deemed insufficient to make them part of the contract. Nor were references on delivery notes or invoices adequate.
Even more crucially, the Court classified the limitations of liability in Art. 21 and 22 GC Spedlogswiss as unusual. These clauses limit the liability of freight forwarders and cap the compensation obligation at SZR 8.33 per kilo or SZR 20’000 per claim. In the Court’s view, they depart substantially from the statutory provisions in Art. 447 et seq. of the Swiss Code of Obligations («CO») – and would therefore come as a surprise to a client unfamiliar with the industry.
This perspective of the Federal Court falls short: in the transport sector, very few contracts are governed by the CO – instead, depending on the mode of transport, internationally harmonised liability regimes apply, which take precedence over the CO’s provisions. Liability caps are not unusual but rather the standard, an integral part of international treaty regulations and, at least in part, even mandatory law. Whether under CMR, the Montreal Convention or CIM – corresponding limitations can be found in all of them. The liability limit of SDR 8.33 per kilo corresponds to the mandatory limitation applicable to international road transport under Art. 23(3) CMR (SR 0.741.611).
Moreover, in most European countries such as Germany (ADSp 2017), Austria (AÖSp) or the Netherlands (FENEX), industry-wide general terms for forwarders exist which contain the same or comparable per-kilo liability limits combined with overall caps. The GC Spedlogswiss terms therefore not only reflect internationally recognised legal norms but are also conform to international industry standards (Lex Mercatoria) – and thus cannot objectively be regarded as unusual.
The Court also disregards the fact that the first version of the GC Spedlogswiss was created 100 years ago and that they have been applied virtually across the board in the Swiss forwarding industry for decades. Can such widely established industry rules really be considered unusual?
Another problem is the subjective view: the Court assumed that the pharmaceutical customer lacked knowledge of the industry. Yet globally operating companies and their logistics departments are well aware that carriers’ liability is limited by law – and at least in the international context, at a significantly lower level than under Art. 447 CO. It is also well known to an exporter that freight forwarders regularly align their (contractual) liability with the liability of the international carrier under the freight contract and limit it accordingly. The reason: neither carrier nor forwarder has an economic interest in the goods being transported, nor do they benefit from their value creation. They merely provide transport organisation services (forwarder) and transport services (carrier). Shippers therefore routinely insure their goods during transit through property insurance (transport insurance, marine insurance, etc.). This also means that the knowledge of the limited liability of the freight forwarder and carrier must be attributed to the shipper. An earlier decision of the Swiss Federal Supreme Court (BGE 77 II 154) already required business customers to have such knowledge. The fact that the Court is now transferring consumer protection considerations to the B2B-sector is irritating.
The ruling creates uncertainty and thus reinforces the need for formally correct incorporation of general terms and conditions:
For shippers, on the other hand, this opens up the possibility of more easily challenging liability limitations in the event of a dispute. The decision thus creates legal uncertainty.
With its strict application of the unusualness rule (“Ungewöhnlichkeitsregel”), the Federal Supreme Court is calling into question an industry standard in transport law that has been in place for decades. It remains to be seen whether this jurisprudence will be confirmed or rectified in future decisions. At the very least, the ruling is not scheduled for publication in the official collection of Decisions of the Swiss Federal Supreme Court. One thing is certain: freight forwarders must inform their customers more clearly than before about the inclusion of the general terms and conditions and, in particular, the liability limits – otherwise they might be held to full liability.
We would be pleased to advise you on the requirements for the inclusion of general terms and conditions and the typical pitfalls to avoid.
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