Germany: Germany Enacts A New Maritime Statute

April 25, 2013 was a noteworthy date in the history of German maritime legislation. On that date, the new German maritime statute came into force, amending Book 5 (Maritime Trade) of the German Commercial Code (the Handelsgesetzbuch or "HGB"). The amending legislation, on which work began in 2004, is the first major revision of German shipping law since 1861 and is designed to modernize the country's Commercial Code, bringing it from the age of sailing vessels into the contemporary era of container ships. Redundancies have been eliminated, gaps filled and various provisions harmonized with Germany's civil and general transport law.

As regards the carriage of goods by sea, Germany remains a Hague Rules state, which never ratified the Visby Protocols but has implemented them by national legislation. There appears to be little chance of Germany ratifying the Rotterdam Rules any time soon. The amended Commercial Code, however, introduces some changes to the Hague-Visby regime, drawn from the Hamburg or Rotterdam Rules or the country's 1998 general transport law. Nevertheless, any such changes relating to "contracts for the carriage of general cargo" that conflict with Germany's international obligations under the Hague-Visby Rules (e.g. the elimination of the defences of error of navigation or management of the ship and fire) will not apply to bills of lading issued in Hague-Visby states.

Some of the salient features of the amended Book 5 of the HGB are the following:

  • Ship arrest will now be facilitated in Germany. In the past, it was necessary to show a valid ground for arrest (e.g. the impossibility of enforcement of the maritime claim in another jurisdiction or a matter of urgency), as well as a valid maritime claim. Under the amended legislation, only a valid maritime claim need be proven. As a result of that change, Germany should now become a jurisdiction where ship arrest will be easier (and likely also more frequent), its arrest law now being more akin to that of Belgium and the Netherlands.
  • Certain provisions on masters, considered outdated, have been repealed, masters now being considered as employees of shipowners rather than as quasi-entrepreneurs as they often were in the nineteenth century.
  • Shipowners will now be liable for damages done by their crews and others on board their ships, provided that the person who suffered the damage also has a claim for damages against the crew member in question. In addition, the shipowner will be liable for on-shore damages to cargo and that liability may only be excluded by individually negotiated agreements, not by general terms and conditions of a contract.
  • German law, for the first time, now provides expressly for time and bareboat charterparties, by detailed mandatory provisions on such contracts. Voyage charters continue to be regulated as hitherto.
  • In the carriage of goods, the carrier's period of responsibility for cargo loss or damage is will now extend from the taking over of the goods until their delivery, rather than from tackle to tackle. The carrier may avoid such liability, however, by proving that the loss or damage was due to circumstances which it could not avoid and the consequences of which it was unable to prevent.
  • In cases where the vessel was unseaworthy or uncargoworthy, and where the facts indicate a likelihood that the loss or damage was caused by that condition, the carrier may escape liability only by proving that the condition in question could not have been discovered prior to the commencement of the voyage by a reputable carrier exercising due care.
  • The Hague Rules exceptions of error in the navigation and management of the ship and fire have been repealed. Nevertheless, the legislation permits the parties to a contract of carriage to exclude liability for navigational fault and fire by general terms and conditions (e.g. standard bill of lading terms) or by express agreement.
  • The other traditional Hague Rules exemptions remain unchanged in the German legislation, and limitation of liability remains set at the Hague-Visby level (i.e. the higher of 667.67 SDRs per package or unit or 2 kilograms of the gross weight of the cargo), unless the parties agree to higher limitations. As in Hague-Visby, those limitations are broken where the damages are proven to have been caused by an act or omissions of the carrier done with intent to cause such damage or recklessly and with knowledge that the damage would probably result.
  • The new statute introduces into German law the new concept of "performing carrier", being the party (other than the contracting carrier) who actually performs the transport service. Although not stated expressly, the relevant definition appears to include as performing carrier parties such as a sub-carrier, a time charterer, a sub-charterer or a terminal operator. The performing carrier has the same liability as the contracting carrier for damage resulting from the loss of or physical damage to the goods and is jointly and severally liable for such loss or damage, together with the contracting carrier. Performing carriers and their servants may invoke the same exemptions from and limitations of liability as the contracting carrier. Any contractual arrangements with the shipper or the consignee whereby the carrier expands its own liability applies to the performing carrier only if the latter has agreed to those terms in writing.
  • The statute specifies the compulsory content of a bill of lading, including, notably, the name and address of the carrier, thus facilitating the taking of suit for cargo loss or damage.
  • The shipper's liability for damages caused by his false declaration will no longer be fault-based. Rather, damages caused by the provision of false information concerning dangerous goods or bad packaging may now be claimed from the shipper, regardless of any fault on his part.
  • A time limitation for indemnity claims has been established, requiring the party wishing to seek indemnification to file his claim within three months of being made aware of the claim, on pain of loss of the right to any such indemnity.
  • Deck stowage is no longer prohibited per se. While in general goods may not be loaded on deck without the shipper's consent, such loading is now permitted without such consent, provided that the goods are placed in or on an article of transport suitable for on-deck carriage (e.g. a container) and provided that the deck has been properly fitted out to carry such an article of transport. If goods are loaded on deck without the shipper's consent (where required), the carrier is liable for any resulting loss or physical damage to them, even if it occurs without any fault or neglect on the carrier's part, there being a presumption that the loss or damage was caused by such loading. If the carrier had agreed with the shipper that the goods were to be carried below deck and the damages resulted from their having been loaded and stowed on deck, the codal and contractual exemptions and limitations of liability do not apply (a fundamental breach provision).
  • A legal basis for electronic bills of lading has been created.
  • Bills of lading purporting to incorporate by reference the terms and conditions of a charterparty, including any law and jurisdiction clause, will not be effective to incorporate those charter provisions under the new statute. This is considered to be one of the more drastic changes introduced by the amendments.
  • Sea waybills are provided for, in both paper and electronic formats. Such documents are declared by the new legislation to be prima facie evidence of the conclusion of the contract of carriage and of its contents, as well as evidence that the carrier has taken over the goods. A sea waybill must be signed by the carrier but the signature may be reproduced by printing or a stamp.

It remains to be seen whether the new legislation will prove popular and effective in achieving its stated goals of modernization. In particular, the possible ratification of the Rotterdam Rules by the United States and at least some European Union states may put added pressure on Germany to further amend Book5 of its Commercial Code. If it should choose not to yield to such pressure, interesting conflict of law problems may lie ahead. Canadian shippers and carriers should be at least generally aware of the amended Code, particularly as the Canada-E.U. Free Trade Agreement begins to affect trade with Germany in the next few years.

It is encouraging to see this major European Union country taking positive action to update its maritime legislation, but it is also disappointing to some observers that so important a shipping nation has chosen to go it alone with national legislation on carriage of goods, thus further weakening international uniformity of maritime law in that important domain.

N.B.: The above outline is a purely unofficial summary of some of the key provisions of the amended Book 5 of Germany's Commercial Code. The full text of the Code, as amended by the 2013 statute, should be consulted for all purposes of interpretation.

About BLG

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions