TT Talk - Alert: reform of the German Maritime Code
Almost 15 years after revision of its transport legislation, Germany has modernised its law carriage by sea. Here is a review by the TT Club of the principle changes and the potential impact to trade and litigation.
In December 2012 the Bundestag passed legislation to modernise the law of international carriage of goods by sea as it applies in Germany. The new Code comes as no surprise after the revision of German transport law in 1998. Although the 1998 revision was substantial, it formally stopped short of the maritime mode, partly because of the complexity of the issue and partly because of uncertainty over the implementation of the Rotterdam Rules.
In common with a few other states, generally civil law jurisdictions, Germany never actually ‘signed’ the Hague-Visby Rules, but instead took them, with some variation, into its Commercial Code. As a consequence, it is possible to adjust the Code, without having to ‘unratify’ a signed treaty.
The new German Code retains the basic structure of Hague-Visby with, as will be seen below, an overlay from the putative Rotterdam Rules and, to a lesser extent, from the ‘moderately’ successful Hamburg Rules.
Freedom to contract
Most fundamentally, the traditional Hague-Visby concept of ‘derogation’ has been watered down, allowing the parties greater freedom to contract without offending against mandatory rules. However, the provisions of the new Code cannot be altered by ‘general business terms’, subject to certain exceptions. Therefore, alterations cannot be made simply by adjusting the conditions on the reverse of the bill of lading; changes must be individually negotiated for each carriage.
This injection of bargaining power is reminiscent of Rotterdam Rules, although Rotterdam adopts a different approach. One view is that this is a healthy introduction of free market forces. A contrary view is that trade may be distorted if the bargaining position of one party to a contract is stronger than that of the other party.
Waiver of defences
The exceptions to the ‘general business terms’ rule are the Hague-Visby fire and error in navigation defences, and the limitation amounts for multimodal carriages.
The fire and error in navigation defences can be waived generally, for example by adapting bill of lading conditions. Again, this is reminiscent of the Rotterdam Rules which reject the error in navigation defence as outdated, particularly in view of modern communications technology, and restrict the traditional fire defence.
The familiar Hague-Visby limitation amounts of SDR 667 per package or SDR 2 per kilo can be altered, in respect of intermodal land-sea carriages, by selecting a different SDR per kilo amount in the range 2 to 40, as long as it can be shown that both parties were aware of the alteration. This is consistent with the 1998 revision of the transport law. Any other alteration to limitation amounts requires individual negotiation.
The new Code draws on both Rotterdam and Hamburg by extending the definition of ‘actual carrier’ beyond the actual shipowner. In certain circumstances a time charterer or terminal operator is deemed to be the carrier.
The new Code borrows – from the European Convention for International Carriage of Goods by Road (CMR) – the provision that the prescription period is interrupted by a letter of claim, until the party receiving the claim formally rejects it.
Finally, the new Code makes it easier to arrest a ship in Germany. In brief, less importance is now placed on proving that a debtor is about to remove its assets.
The changes which the new German Maritime Code brings with it may be rational. But like all change, it threatens old certainties on which the international community has come to rely. Germany is now distinguished as a jurisdiction to which special rules apply.