On 14 December 2012, the Bundestag passed the law on the reform of maritime trade law. The law is due to enter into force in February 2013. All those involved in sea transport should therefore have their terms and conditions checked to see whether they comply with the new regulations and, if necessary, have them adapted.
The reform of German maritime trade law has been under discussion for years. The regulations adopted as early as 1897 no longer proved to be in time. Brigitte Zypries had already advocated reform in 2004. The draft has now been passed by the German Bundestag and the maritime trade law, previously codified in the Commercial Code, will be completely revised and structured. 125 paragraphs have been declared superfluous and removed from the new maritime law. With this and with new content, German maritime law is to be adapted to modern needs.
Among other things, obsolete regulations will be abolished. These include, for example
- the party shipping company,
- the procedure under maritime law. However, the declaration procedure (this is a special procedure for the preservation of evidence) in inland navigation is still permissible and can in future be carried out by the judge.
But also in other respects extensive innovations are introduced.
- Limitation of the captain’s liability,
- Regulations of common contractual practice in maritime trade,
- Regulation on liability for passenger damage on smaller seagoing vessels and inland waterway vessels in accordance with EC Regulation 392/2009.
- New rules for the general average procedure. No further distinction is made between special cases. The differentiation between non-actual average, the small average and the special average is no longer maintained.
- Facilitation of the arrest procedure. While in the past it was necessary to prevent or considerably complicate the execution of a sentence without the remission of a ship’s arrest, the ship’s arrest is now also permissible without this condition,
- Extension of enforcement in ships. Until now, forced auctions have been temporarily hindered if the ship is on a voyage and is not in port. This only applies to seagoing vessels.
What changes in sea freight law?
One of the main changes to the maritime law reform concerns maritime freight law. This is the first time that electronic bills of lading and sea waybills can be used. Sea freight law is also more closely aligned with land freight law.
However, the provisions on liability shall not change. Here it remains with the limitations of liability, which are given by the Haag-Visby rules. However, liability for fire and nautical fault is important. Nautical negligence involves faulty actions in guiding and operating the vessel. Especially in the case of ship collisions, nautical fault is regularly present.
Until now, liability for nautical fault was excluded in accordance with the Harter Act. According to the reformed maritime trade law, liability for fire and nautical fault is no longer excluded. This new regulation is based on the liability concept known from the Rotterdam Rules, but carriers and charterers must agree on such an exclusion of liability. In the case of the states that have ratified the Hague Rules, however, a legal exclusion of liability remains in force because of the priority agreements under international law.
Until now, the legal nature of bareboat charter and time charter was problematic in German maritime law. Both types of contract for the provision of vessels are now explicitly regulated, making it easier to distinguish them from the maritime contract of carriage.
Who has to deal with the reform of maritime trade law?
The reform of maritime trade law concerns all companies involved in maritime trade. In particular, shipping companies that have based their bill of lading conditions on German law will have to revise them comprehensively. International purchase contracts relating to sea transport and freight orders must also be reviewed to ensure that old regulations are no longer included.
As the regulations on ship detention are being simplified, more arrests are also to be expected in Germany.
Please contact us if you would like to know more about the effects of the new maritime trade law on your business. We work with you to develop a strategy to ensure that your business processes fit seamlessly into the legal framework, even under the new Maritime Trade Act.
Your contact person
Dr. Tristan WegnerABC-Str. 2120354 Hamburg