С 25 апреля 2013 года в морском праве ФРГ появились серьезные новеллы. Эти новеллы касаются ареста судов, условий чартеров на определенное время: тайм чартера и бербоут-чартера, а также свободы договоров и исключения ответственности. Особое внимание автор уделяет правовому статусу исполняющего (фактического) перевозчика и требованиям о возмещении убытков. В результате такой инновации в германское морское право инкорпорированы все последние достижения в сфере универсальных международных стандартов, регулирующих отношения по поводу перевозки грузов по коносаменту.
New maritime trade legislation, aimed at modernising German maritime law, entered into force in Germany on April 25, 2013. Many areas of maritime law were revised, with the objective of simplifying the law, taking into account Germany’s role as a significant trading nation.
The changes include the incorporation of comprehensive provisions relating to time and bareboat charterparties, the introduction of the concept of ‘performing carrier’, the extension of the shipowner’s liability for damages and the facilitation of the arrest of ships.
Germany is a member of the Hague Rules (an international convention for the unification of certain rules of law relating to bills of lading) and has never signed the Hague-Visby Protocol, a set of international rules for the international carriage of goods by sea. However, prior to the reform, many provisions of the Hague-Visby Protocol were part of the German Commercial Code (albeit some clauses were slightly amended).
The German government has chosen to remain a signatory to the Hague Rules. However, under the new rules, in addition to provisions of the Hague-Visby Protocol being implemented, principles from the Hamburg Rules and Rotterdam Rules have also been incorporated. As a result, the current position under German law is more complex than before.
The main changes
Ship arrest: Under the previous legislation, the threshold for arresting a vessel was high. There were a limited number of specific grounds for arrest (for example, being unable to enforce a judgment in a foreign country). As a consequence, arrest warrants were rarely granted by German courts.
Under the new maritime law, the position is much simpler and it is sufficient to show that there is a claim against the vessel owners.
Arrest orders are already being granted more frequently since the new legislation came into force, demonstrating the effectiveness of the changes.
Provisions on time and bareboat charterparties: For the first time, detailed provisions have been introduced in relation to time and bareboat charterparties. The new rules include an obligation on the part of a shipowner to immediately disclose the existence and name of the bareboat charterer to a claimant if the shipowner wishes to shift the responsibility to the bareboat charterer.
If such disclosure is not made prompdy (that is without undue delay), the shipowner can be held responsible even if the bareboat charterer, rather than the owner, caused any damage.
Exclusion of liability and the parties’ freedom of contract: In contrast to the Hague-Visby Rules, under German law an owner’s liability is no longer excluded in case of a navigational fault by his crew, or in case of fire.
This new concept is an example of German law adopting ideas found in the Hamburg/Rotterdam Rules. Hence, it is very important for carriers to expressly exclude liability for navigational fault and fire in their bill of lading terms and conditions.
The ‘performing carrier’
The reform also introduces a completely new concept into German maritime law, namely the ‘performing carrier’. The performing carrier is meant to be a person who actually performs the transport, but who is not the contractual carrier.
Although it is not expressly stated, the performing carrier can be anyone, including the sub-carrier, time charterer, sub-charterer or arguably even the terminal operator.
The performing carrier will be liable under the exact same terms as the
contractual carrier under the main contract of carriage. As a result, it will be very important for the performing carrier to ensure a back-to-back liability regime reflecting the contract between the shipper and the contractual carrier.
Byway of example, it will not be enough for a performing carrier to exclude liability in its terms and conditions for, say, fire. If such exclusion is not also agreed between the shipper and the contractual carrier, the performing carrier will still be liable for damages caused by fire even though his liability for damages caused by fire was excluded in his general terms and conditions.
The reason being that under the new rules, the performing carrier is liable under the same terms as the contractual carrier.
Indemnity claims
The reform also changed the limitation period for indemnity claims. While the one-year limitation period for cargo claims has not changed, the additional three-month notice period (known from the Hague Visby-Rules) has been deleted.
According to the Hague-Visby Rules, a recourse claimant may commence recourse proceedings against a defendant within three months after claim submissions have been served on him.
Under the new German law, it will not be possible any longer to await the service of claim submissions before holding the recourse defendant liable.
Rather, under the new German law, it is necessary to hold the defendant liable within three months after having become aware of an incident.
If notice is given within three months after the incident, recourse proceedings may be commenced as late as one year after the claimant has received a final judgment.
Comment
This maritime law reform had long been anticipated and it is hoped that it should prove to be a successful modernisation of German maritime law. The relevant part of the German Commercial Code is now much shorter and clearer in its structure.
However, due to the fact that German maritime law now incorporates provisions from the Hague-Visby Rules, the Hamburg Rules and Rotterdam Rules, the legal position is somewhat more uncertain – at least at this early stage, while the law remains relatively untested and the maritime industry is not yet completely familiar with the new law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Автор: Tim Schommer
Источник: Heavy Lift & Project Forwarding International. – 2014. – January/February. – P. 65 – 66.