according to § 446 HGB forwarding lien
According to § 446 HGB, the freight forwarder has a legal pledge of rights to the goods, including freight, commission, expenses and use. The prerequisite for this is that he is in possession of the goods, in particular that he can dispose of them by means of bills of lading, consignment bills or warehouse receipts.
(Cf. Marx/Arens: Der Auktionator, 2004, p. 274)
Detailed information
Detailed information on the subject of freight forwarders’ lien on our website especially for freight forwarders: www.speditionspfandrechtsversteigerung.de
Costs
Manageable costs
We are obliged to carry out the valuation and realization at reasonable costs, taking into account the rights of all parties involved. The amount is based on the type of pledge and the effort required to achieve adequate realization proceeds in the interests of the debtor. As remuneration for his expenses and activities, the auctioneer receives a lump sum from the client and a so-called premium on the hammer price from the buyers. In order to avoid any accusation of squandering, the pledge should be advertised in an appropriate form. The greater the demand for the pledged item, the lower the flat fee.
Important to know: The debtor bears the costs of the proceedings. Unrealizable costs can be claimed as expenses for tax purposes by the creditor.
The Auctioneer shall have unlimited and personal liability for culpable breaches of duty. The client cannot release the auctioneer from this liability for damages. The auctioneer’s remuneration is therefore always also a liability remuneration.
Insolvency avoidance by insolvency administrator
Making provisions in good time avoids nasty surprises
Insolvency avoidance is a risk that many freight forwarders do not have on their “radar”. If freight rates and storage costs are no longer paid on time or are in arrears, there is a high risk of insolvency. The freight forwarder is then threatened not only with the loss of his claim, but also with insolvency proceedings. This means that if it can be assumed that the freight forwarder was aware of the debtor’s inability to pay due to slow payment, unusual payment methods or bounced direct debits, among other things, then the trap “snaps shut”. According to the current legal situation, the insolvency administrator can also reclaim all payments not already made in cash from the carrier for a period of up to 10 years from this point in time. The insolvency administrator can easily prove this on the basis of the available receipts. Sluggish payment receipts can have fatal consequences (see BGH judgments ref.: IX ZR 70/08, IX ZR 134/10, IX ZR 239/09, IX ZR 3/12 and IX ZR 143/12).
How we can help:
We offer you an insolvency-proof solution. In order to counter the risks of insolvency avoidance, we advise freight forwarders on how they can immediately integrate counter-strategies that are resistant to insolvency avoidance into their receivables management by integrating their pledge of rights (see BGH AZ.: IX ZR 3/12, AZ.: IX ZR 52/10).
Conclusion: Your patience with the debtor can place an incalculable burden on your own company. It is therefore essential to act immediately in the event of non-payment or late payment .
Special situation insolvency
Realization of forwarding liens in the event of insolvency
In principle:
The decisive factor for the insolvency administrator’s right of realization is that he is in possession of the item (section 166 (1) InsO). If the forwarder has previously asserted his forwarder’s lien and seized the collateral for the purpose of realization, he can have the realization carried out by a generally publicly appointed, sworn auctioneer by way of public auction.
Practical tip:
The insolvency administrator’s claim to remuneration is calculated on the basis of the total amount of income generated. It is therefore in the interest of the insolvency administrator to keep separate assets in the estate. Obstruction on the part of the insolvency administrator is therefore to be expected if the forwarder wants to carry out the liquidation itself.
If the forwarder has asserted his forwarder’s lien one month before filing for insolvency and has seized the collateral for the purpose of liquidation, he can have the liquidation carried out. There is no obligation to return the goods to the insolvency administrator. This also eliminates the cost contributions for this collateral and the VAT can be offset against the realization.
It is sufficient for the insolvency administrator’s right of realization that he acquired the property in the application proceedings in his capacity as provisional insolvency administrator and that a prohibition of sale was issued. From this point onwards, he can refuse to hand over the goods to the forwarder. However, he must have actually taken possession. Indirect possession by the administrator is not sufficient for a realization right.
In order to enforce his right of realization, the insolvency administrator requires direct possession, i.e. actual control over an object. If the forwarder succeeds in asserting his pledge of rights in good time, taking into account all legal requirements, the insolvency administrator is left behind. The priority principle then applies in favor of the freight forwarder. The realization of the freight forwarder’s lien by the generally publicly appointed auctioneer almost always leads to a faster realization of the claim and payment with higher realization proceeds than through sale by the insolvency administrator. storage space is not blocked by the insolvency administration, but is available again at short notice.
Security interests of the freight forwarder:
In the event of insolvency, liens become ineffective. However, the forwarder retains his security rights in terms of value. The pledged items or rights then count as separate assets.
In principle, the insolvency administrator has no power of realization pursuant to Section 88 InsO if the forwarder has acquired his pledge of rights one month before filing for insolvency proceedings.
The insolvency administrator’s right of realization:
It is sufficient for the insolvency administrator’s right of realization that he acquired the property in the application proceedings in his capacity as provisional insolvency administrator and that a prohibition of sale was issued. From this point onwards, he can defend against surrender to the forwarder. However, he must have actually taken possession. Indirect possession by the administrator is not sufficient for a realization right.
If the insolvency administrator is in possession of the pledge, it is classified as a separate asset. He is then entitled to realize the pledge.
- He is free to decide how and at what price he realizes the goods. He may realize the goods on the open market or commission third parties of his choice to realize the goods.
- The insolvency administrator or the person appointed by him is not obliged to determine the highest bidder in a regulated liquidation procedure. He may sell to the first bidder or to anyone he likes at any price.
- The insolvency administrator receives a lump sum of at least 9% plus 19% VAT from the liquidation proceeds and further lump sums for the liquidation costs. If the actual liquidation costs incurred are significantly higher or lower than the lump sums, the actual costs incurred must be applied (section 171 (2) sentence 2 InsO). As a result, experience shows that storage areas are blocked for a long time. The decisive factor for the insolvency administrator’s right of realization is that he is in possession of the item (section 166 (1) InsO).
Obligations of the insolvency administrator in the liquidation:
The Insolvency Code addresses the fears of forwarders entitled to separate satisfaction that the insolvency administrator could abuse his right of liquidation by remaining inactive and not pursuing the sale swiftly by means of the general obligation to liquidate after the reporting date (Section 159 InsO) and, above all, by the fact that the lessor can demand the interest owed from the insolvency estate on an ongoing basis from the reporting date (Section 169 InsO). The interest run ends with the payment of the realization proceeds to the forwarder. The interest rate depends on the contractual agreements. If the debtor is in default, default interest can also be demanded.
Before the insolvency administrator sells the pledged property to a third party, he must inform the carrier entitled to separate satisfaction how and at what price the item or right is to be sold. The insolvency administrator may sell a movable item in which he has a pledge of rights by private treaty.
Important: Pursuant to Section 168 InsO, the forwarder has the right, within one week of notification of the intention to sell, to provide evidence of a more favorable realization option or to have such evidence provided. The insolvency administrator must then take advantage of this opportunity or place the forwarder in the same position as if he had taken advantage of the opportunity.
Practical tip: Insolvency administrators are rather reluctant to see evidence of better realization by the forwarder, as this often does not fit into their overall settlement strategy.
Important note to avoid legal disadvantages:
- The forwarder must immediately assert his rights to separate satisfaction vis-à-vis the insolvency administrator in writing, specifying the object or right to which the right to separate satisfaction relates.
Further information to protect the freight forwarder from financial losses and disadvantages:
- The insolvency administrator may not demand any “segregation fees” from the freight forwarder.
- The freight forwarder is not obliged to provide information to the insolvency administrator. He does not have to hand over any documents. Even if the insolvency administrators often claim the opposite. The insolvency administrator is often in need of evidence due to the debtor’s chaotic bookkeeping, for example.
- Compared to the realization of pledged goods by the publicly appointed, sworn auctioneer, this usually means considerable disadvantages for the forwarder. The realization procedure is beyond the control of the forwarder, especially with regard to the realization costs. In practice, the possibility of the landlord providing evidence of a better realization option in accordance with Section 168 InsO proves to be impossible to implement in most cases — it is not part of the forwarder’s core competence to generate prospective buyers within such a short period of time.
Release: The insolvency administrator is not obliged to make use of his right of realization. Instead, he can leave the realization to the creditor in accordance with (section 170 (2) InsO). This is expedient if the creditor has more favorable liquidation options, for example because he wishes to commission a publicly appointed, sworn auctioneer who is well established in the liquidation of pledges of rights. Even in this case, it is advisable not to waive the privileges of lien realization.
This is how we can help:
- We can determine the value of the separate assets by means of a lien realization report, from which the interest can then be determined in accordance with § 169InsO.
- As a general rule, we can always best help forwarders to realize their claims if they act immediately in the event of payment problems. It is the freight forwarder’s right not to accept the sale of the pledge to the buyer proposed by the insolvency administrator. Because it often does not fit in with the insolvency administrator’s liquidation strategy, they are reluctant to see evidence of a higher bidder. We have thousands of contacts with prospective buyers and can help to generate the highest bidder exclusively at short notice through a FIRE SALE. The prerequisite is that forwarding agents contact us promptly. Freight forwarders can only gain from this, as they incur no costs and the proceeds from the sale are almost always higher than when sold by the insolvency administration.
Conclusion:
Experience shows that insolvency administrators often waive their right of realization if they notice that the forwarder is facing a well-founded “headwind”.
