Germany is in the final stages of significantly reforming its maritime trade
law. The reform bill has been approved by parliament and is set to enter into
force in due course.Maritime trade law is codified in the Commercial Code.
Although Germany has always endeavoured to adapt its maritime law to changing
economic conditions, and has therefore incorporated various reforms into the
code, the general structure of maritime trade law has undergone no significant
adaptions for the past 150 years. The reform aims to update these rules in order
to satisfy the needs of the 21st century shipping industry.Main
innovationsThe reform bill establishes a contemporary body of law by
reducing the amount of provisions by half and introducing a more systematic
structure. Some of the amendments being implemented include:• detailed
rules on charterparties;
• practice-orientated provisions on different forms of freight contract; and
• new rules on sea waybills.The central modifications of the revised law affect rules on the carrier's liability. Germany is a member state of the Hague Rules 1924 and not the Visby Protocol, but it nevertheless applies the Visby version of the rules unless the bill of lading is issued in a Hague state. Germany applies such rules to bills of lading as well as to contracts of carriage by sea, but the rules are mandatory only if there is a bill of lading. The system is set to change with the reform. Germany will remain a member state of the Hague Rules and apply these to all bills of lading issued in Hague states (with rather complex exceptions as regards bills of lading issued in Germany). In all other cases the applicable provisions will remain modelled on the Hague-Visby Rules. However, if there is no bill of lading issued in a Hague state, there will be no more legal exemptions for liability in cases of nautical error and onboard fire, as this is considered to be an anachronism with regard to the modern engineered shipping industry. Such exemptions remain possible, but must be agreed between the parties. It is generally possible to do so in general terms and conditions. However, most other deviations from the liability rules are allowed only if they are individually negotiated and agreed – even if no bill of lading is issued.The revised law further introduces the new legal concept of the liability of the 'performing carrier', which is defined as a person that is not the contractual carrier, but is actually carrying out transport, either partially or totally. The performing carrier will, in principle, face the same statutory liability as the contractual carrier. This may even have consequences for stevedoring companies and terminal operators.Further, the revised law facilitates and accelerates the arrest of ships. Under the current rules, arresting a vessel often bears a significant liability risk if it later turns out that the arrest was unjustified due to a lack of an 'arrest ground' (lack of a 'matter of urgency'). In future, the arrest of a ship will not require such grounds. Arrest will become easier and the risk of wrongful arrest will be reduced.CommentThe reform of maritime trade law is a considerable step towards improving the standards of the 21st century shipping industry. The revised law will provide a comprehensive and modern legal framework without losing sight of practical needs. However, it will be essential to check and revise standard terms and conditions to meet the new legal standards. The reform strengthens the competitiveness of maritime law and should be encouraging to conclude business subject to law made in Germany.*News Photo: Painting "Sinking Ship" by Bill Frederick
• practice-orientated provisions on different forms of freight contract; and
• new rules on sea waybills.The central modifications of the revised law affect rules on the carrier's liability. Germany is a member state of the Hague Rules 1924 and not the Visby Protocol, but it nevertheless applies the Visby version of the rules unless the bill of lading is issued in a Hague state. Germany applies such rules to bills of lading as well as to contracts of carriage by sea, but the rules are mandatory only if there is a bill of lading. The system is set to change with the reform. Germany will remain a member state of the Hague Rules and apply these to all bills of lading issued in Hague states (with rather complex exceptions as regards bills of lading issued in Germany). In all other cases the applicable provisions will remain modelled on the Hague-Visby Rules. However, if there is no bill of lading issued in a Hague state, there will be no more legal exemptions for liability in cases of nautical error and onboard fire, as this is considered to be an anachronism with regard to the modern engineered shipping industry. Such exemptions remain possible, but must be agreed between the parties. It is generally possible to do so in general terms and conditions. However, most other deviations from the liability rules are allowed only if they are individually negotiated and agreed – even if no bill of lading is issued.The revised law further introduces the new legal concept of the liability of the 'performing carrier', which is defined as a person that is not the contractual carrier, but is actually carrying out transport, either partially or totally. The performing carrier will, in principle, face the same statutory liability as the contractual carrier. This may even have consequences for stevedoring companies and terminal operators.Further, the revised law facilitates and accelerates the arrest of ships. Under the current rules, arresting a vessel often bears a significant liability risk if it later turns out that the arrest was unjustified due to a lack of an 'arrest ground' (lack of a 'matter of urgency'). In future, the arrest of a ship will not require such grounds. Arrest will become easier and the risk of wrongful arrest will be reduced.CommentThe reform of maritime trade law is a considerable step towards improving the standards of the 21st century shipping industry. The revised law will provide a comprehensive and modern legal framework without losing sight of practical needs. However, it will be essential to check and revise standard terms and conditions to meet the new legal standards. The reform strengthens the competitiveness of maritime law and should be encouraging to conclude business subject to law made in Germany.*News Photo: Painting "Sinking Ship" by Bill Frederick