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Carriage of goods
Is your jurisdiction party to any international conventions on the carriage of goods by sea? If so, does the relevant domestic implementing law contain any notable modifications (eg, extensions to the scope of application)?
Germany is a party only to the Hague Rules 1924 (in its original version). Some of its basic features are still applied, but only on the rare occasion that another country that is a party only to the Hague Rules is involved (this applies particularly in relation to the United States).
The autonomous German Law of April 20 2013 still applies the Hague-Visby Rules’ basic liability rules, but with some important exceptions.
What is the official extent of the carrier’s responsibility for goods?
666.67 special drawing rights (SDR) per package or unit or 2 SDR per kilogram, whichever is higher.
Contractual limitation of liability
May parties contract out of any legal provisions governing cargo liability?
Yes – parties may contract out of all of the legal provisions governing cargo liability, but only by individually negotiated stipulation and not (subject to some exceptions) by means of general terms and conditions.
Title to sue
Who has title to sue on a bill of lading?
The legitimate holder.
What is the time bar for cargo claims?
One year from the date on which the cargo is or should have been delivered.
Definition of ‘carrier’ and ‘goods’
How are ‘carrier’ and ‘goods’ defined in respect of cargo claims? Is there any especially pertinent case law on this issue?
A ‘contractual carrier’ is the party obliged by contract to carry the goods by ship to their destination and deliver them to the consignee. ‘Goods’ are not specifically defined.
Besides the contractual carrier, the law regulates the position of the ‘performing carrier’, which is liable for damages under the same legal conditions as the contractual carrier, including with regard to the limits of liability.
Defences available to carrier
Under what circumstances may the carrier rely on the perils of the sea defence? What other defences are available to the carrier?
Carriers are not liable for damage to goods caused by circumstances which could not have been avoided by a prudent sea carrier exercising due care.
Moreover, the carrier may invoke:
- perils of the sea (if unexpected);
- seizure of the ship;
- failures of the shipper;
- inherent vice; or
- characteristics of the goods.
Carriers may no longer invoke the exemption of the so-called ‘nautical fault’ of the master or crew; however, this exemption may be agreed by the parties to the contract or even inserted in a
bill of lading as a general condition of the carrier.
What legal protections and defences against cargo claims are available to agents of the carrier and other third parties (eg, Himalaya clauses)?
Servants of the carrier and crew members may invoke the exemptions and limits of liability granted to the carrier if they are addressed under tort law. Independent contractors do not enjoy this right, unless they act as performing carriers.
Deviation from route
Under what circumstances is deviation from the agreed route allowed?
In general, no circumstances exist under which deviation from the agreed route is allowed. However, the carrier is not liable for damages caused by measures to save lives at sea or for salvage measures. No specific rule on deviation exists.
Claims against shipper
What claims can the carrier pursue in respect of the shipper’s failure to meet its obligations?
Provided it is at fault, the shipper is liable for damage caused to the carrier due to:
- incorrect or insufficient information regarding the cargo;
- incorrect labelling or markings;
- insufficient packing; or
- a lack of documents.
This liability is not limited by law, but can be limited by contract (even by means of general conditions).
Multimodal carriage of goods
How is multimodal carriage regulated in your jurisdiction?
Multimodal carriage is explicitly regulated in some paragraphs of the Commercial Code. In principle, the multimodal carrier is liable under general transport law (in particular, this means that it is liable even where it is without fault and liability is limited to 8.33 SDR per kilogram). However, the multimodal carrier may invoke application of the maritime liability rules if it proves that the damage occurred during the sea leg of the multimodal transport.
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