In 2013, a completely new maritime law came into effect in Germany. The reform of maritime legislation was discussed for almost a decade and its introduction had been postponed several times. The old maritime legislation had only partly been modernised since it was established in 1861. The new maritime code eliminates several rarely used and outdated provisions, such as those concerning the “Partenreederei” (a special form of joint-ownership of a ship), and is aimed to make German law more attractive and competitive in comparison with other European jurisdictions. The most obvious attempt to strengthen Germany as a maritime jurisdiction, is reflected in the change of rules relating to the arrest of ships.
New ship arrest provisions
Under the new law, it is possible to arrest a ship in Germany for any maritime claim, without having to prove any need for urgency, or threat that the claim will not be honoured. Previously, an order for arrest in Germany was more difficult to obtain, because the arresting party not only had to demonstrate a maritime claim in the sense of the arrest convention 1952, but a need for urgent action as well (that is, that enforcement of the claim would be endangered because of any kind of action taken by the debtor). The new rules are clearly aimed at competing with the rather liberal arrest provisions of Belgium and the Netherlands. In other words, Germany is trying to become an arrest-friendly jurisdiction but only the future will show whether creditors will choose Germany for an arrest.
The arresting party still has to pay the costs for berthing or anchorage during the arrest, as well as the costs for maintaining an emergency crew on board the ship. Should the arrest be lifted at any point, the arresting party is liable for all damages suffered by the owner until that point. It is at the discretion of the judge ordering the arrest, whether the arresting party has to provide security in order to obtain the arrest order.
Modernisation of laws on carriage by sea
The new maritime legislation has attempted to modernise the laws on carriage by sea. These rules are modelled on the Hague-Visby rules, but since Germany has never ratified these rules, certain deviations apply: “error in navigation” and “fire” no longer exempt the carrier from liability, unless this is agreed by the parties (for example in the bill of lading conditions). This amendment already partly reflects a provision of the Rotterdam rules. At the same time, Germany has neither signed nor ratified the Rotterdam rules and, for the moment, the Government has no intention to do so. Since most bills of lading will contain a clause excluding liability for “errors in navigation” or “fire”, the practical impact will be limited. However, anybody issuing bills of lading under German law should be aware that these exemptions do not apply automatically.
No more charterparty bills of lading
More important for daily practice, will be the abolition of charterparty bills of lading. Whereas it is customary that a bill of lading issued for a voyage charter states on the bill of lading “all conditions as per C/P” (e.g. the “CONGENBILL”), the new German legislation (sec. 522 para 1 HGB) clearly states that a reference on the bill of lading to provisions not contained in the bill of lading itself, does not have any effect for the holder of the bill of lading, who has not agreed to the charter itself. So, if the bill of lading is transferred to a third party, no provision contained in the charter will apply and the whole carriage will only be ruled by statutory provisions. This (among other things) has the effect that the carrier cannot rely on the “error in navigation” or “fire” defences.
One-year time bar for charterparty disputes
The new maritime legislation introduced statutory provisions for time charters and bareboat charters. Since the parties are permitted to deviate from the statutory provisions, the new legislation does not require any changes to existing German law charters. Attention should be paid to the new rules on time bars. The one-year time bar known from the Hague-Visby Rules for cargo claims, now applies to all claims under charters as well. Time starts with the end of the year in which the claim arose, whereas previously, time started only with the termination of the charter and the time bar was three years. Accordingly, claims under any charter dispute originating in 2013 must be brought before the end of 2014, otherwise they will be time-barred.