Апелляционные суды разошлись во мнениях по вопросу о правовом режиме ответственности в деле о пожаре на борту т/х UND Adriyatik. Французский суд исходил из императивных норм, а английский суд рассматривает некоторые правила как императивные, а некоторые – как диспозитивные. Апелляционные суды в Германии также разошлись во мнениях. Их решения были обжалованы в федеральном суде, где устные слушания состоятся в декабре 2011 г. Ожидаются важные решения, которые должны пролить свет на многие отношения в связи с пожаром при морской перевозке грузов на борту судна.
Fire aboard the Adriyatik: appeal courts disagree over liability regime
Contributed by Dabelstein & Passehl
November 16 2011
In February 2008 the roll-on, roll-off vessel UND Adriyatik caught fire as it sailed from Turkey to Italy, destroying about 200 trucks. Since then, several courts in Germany have considered the liability of Turkish carriers under the Convention on Contracts for the International Carriage of Goods by Road (CMR).
A number of judgments have addressed the question of whether the fire aboard the UND Adriyatik was an “event which could only have occurred in the course of and by reason of” the sea carriage in terms of Article 2(1)(2) of the CMR. Several courts have held that the fire aboard the UND Adriyatik was to be considered an event typical for sea carriage only. On the other hand, however, some courts have ruled that the fire was not an event which could only have occurred in the course of and by reason of the sea carriage.(1)
Another crucial aspect of the case deserves attention. Article 2(1)(2) of the CMR requires that the maritime law which would have applied between the sender and the sea carrier be considered as the “conditions prescribed by law”. The English version of the CMR is rather broad and includes both mandatory and non-mandatory conditions. In contrast, the French version of the CMR includes the wording “dispositions impératives de la loi” (imperative provisions of the law), which indicates that the provisions must be considered mandatory. The German courts have thus had to decide whether the English or French version is to prevail.
This decision had to be made against the background of the various courts’ differing opinions on the question of whether the CMR carrier is liable under the terms of the CMR or Turkish maritime law – which basically refers to the Hague Rules (the latter with the exemption from liability in case of fire unless caused by the actual fault or privity of the carrier).
The Higher Regional Court of Munich held that the French version of the CMR should be binding because its wording is more precise than the English version. The court argued that the provisions of the CMR are mandatory due to Article 41, and that another liability regime could be applicable only on the basis of Article 2 of the CMR if the other regulations were also mandatory. The court considered that the Hague Rules are not mandatory regarding the issuance of a bill of lading, since bills of lading are issued in relation to roll-on, roll-off shipments only in exceptional cases. Consequently, the court concluded that the conditions of Article 2(1)(2) of the CMR had not been fulfilled and that the road carrier was liable under the terms of the CMR.
In contrast, the Higher Regional Court of Hamburg rejected the liability of the carrier, stating that Turkish maritime law applied. The court argued that the English wording of the CMR was to prevail, considering the historical background of the CMR – essentially, Article 2 of CMR was introduced in order to make it apply to the United Kingdom. Further, the court cited the concept behind Article 2 of the CMR: that the liability of the CMR carrier should correspond to its potential to obtain recourse for the damages from its vicarious agent. This concept should be safeguarded only if the CMR carrier is liable in the same way as the roll-on, roll-off sea carrier. As a result, the court applied Turkish maritime law and therefore rejected the claim.
Both decisions were appealed to the federal court. The oral hearing in one of the cases is due to take place in December 2011. Both appeal proceedings will give some guidance on the question of how the prerequisites of Article 2 of the CMR must be interpreted. In particular, the decisions will shed some light on the questions of whether:
- the fire on board a vessel can be considered as a danger typical for sea carriage only; and
- the relevant shipping law must be mandatory in order to apply (which is closely connected to the interesting question of whether the Hague Rules can be considered mandatory provisions).
Several parallel proceedings have been suspended pending the decisions of the federal court.
Авторы: Steffen Maelicke, Steffen Maelicke