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This article discusses the major changes in the recent reform of German maritime law, including the incorporation of international conventions, revisions to carrier liability, and simplification of the ship arrest procedure. It highlights the implications for contracts of carriage and the rights and responsibilities of carriers and shippers.
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The Major Changes of the Recent Reform of German Maritime Law TVR-Symposium Actualiteiten Zee- en Vervoerrecht March 20, 2015 Dr. Tobias Eckardt
German Maritime Law - Basic concept Civil law country Codification system Contracting state to Hague Rules, but Visby Protocol not ratified HVR adopted by incorporation into the HGB Regulations in Fifth Book of the Commercial Code (Handelsgesetzbuch, “HGB”) New maritime law in Secs. 476-619 HGB Entered into force on 25 April 2013
Application • Carriage of cargo under B/L issued in HR state • HR apply • If cargo not carried under B/L issued in HR state • or no B/L issued at all: • Revised HGB rules apply
Highlights of the Reform • Modernized and Shortened • Fundamental revisions, e.g. • “Partenreederei”, ship’s protest and maritime insurance deleted • Athens Convention 2002 and Athens Regulation 2012 incorporated • Incorporation of C/P terms into B/Ls • Carrier’s exemptions from liability revised • Simplification of arrest procedure GER new NL? • Antique rules regarding master adapted to reality • GA rules slimmed down
Contracts of Carriage I • Voyage charter • Sec. 527 et seq. • Rules freely negotiable, deviation even by standard terms. • If nothing was agreed: Statutory rules apply regarding • Agreed place of loading / discharge / safe berth • Notice of readiness / lay time / demurrage • Loading / Stowing / Lashing f.i.o.s. clause now statutory law • Cancellation • Carriage of part load
Contracts of Carriage II • Charter bills of lading • “Death” of standard charter B/L? • Second sentence added in Sec. 522 para. 1 HGB: “An agreement to which the bill of lading merely makes reference is not incorporated into the bill of lading.” • T&C’s of C/P merely referred to in (e.g.) “Congenbill 94” do not become incorporated the B/L cannot be held against consignee!
Carrier’s liability I • General (Sec. 498 HGB) • - from take-over until delivery and regardless of fault • - exemption possible: exercise of due diligence • - no exemption if vessel unseaworthy or uncargoworthy at start of voyage unless proven that “undetectable” • Limits of liability remain (666.67 SDR/unit or 2 SDR/kg) • No statutory exemptions for navigational/operational error and fire/explosion • Written claim for compensation extends time bar; Sec. 608 HGB
Carrier’s liability II • Sec. 512 HGB (new) • Divergent arrangements • (1) The arrangements made may diverge from the provisions of the present Subtitle only if their particulars have been negotiated individually; this shall also apply where such arrangements are agreed for a plurality of similar contracts between the same contracting parties. • (2) Notwithstanding the provisions under paragraph (1), however, the pre-worded terms of contract may stipulate the following: • 1. That the carrier is not responsible for any fault or neglect on the part of its servants or of the ship’s company, insofar as the corresponding damage was caused in the course of steering or otherwise operating the ship, or was caused by fire or explosion on board the ship and the measures taken were not predominantly for the benefit of the cargo. • 2. That the liability of the carrier for loss or physical damage will be limited to higher amounts than those set out in Section 504.
Carrier’s liability III • Mandatory liability vs. dispositive Law • General: Mandatory liability for damage to goods in • carrier’s custody; Derogation possible only by individual agreement, not T/Cs (Sec. 512 I HGB) • (Different for voyage C/Ps: freely negotiable) • Exemption for damages at land before loading or after discharge in standard terms (“Landschadensklausel”) no longer possible • Exemption of liability for navigational/operational error or for fire/explosion on board no longer statutory agreement needed (but here: standard T/Cs suffice, Sec. 512 II HGB)
Ship arrest made easy I • Set out in Sec. 916 et seq. GermanCode of Civil Procedure (GCCP) • No arrest against the vessel per se no action in rem • Sec. 916 GCCP • Claim to arrest • (1) Arrest is a remedy serving to secure compulsory enforcement against movable or immovable property for a monetary claim or a claim that may evolve to become a monetary claim.
Ship arrest made easy II • - Prima facie claim suffices for creditor • - Documents and affidavits as proof • - Abolished requirement: • Demonstration of „special need“ based on an unlikely or difficult enforcement of judgement if arrest not granted
Ship arrest made easy III • Sec. 917 GCCP (new) • (2) It is to be deemed sufficient grounds for a writ of arrest to be issued if the judgment would have to be enforced abroad and reciprocity has not been granted. No grounds for a writ of arrest need be given if the arrest is being implemented solely by way of securing the compulsory enforcement against a ship.
