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Trends and developments
Are there any notable trends or recent legal developments in your jurisdiction’s shipping industry?
The legal basis of maritime commercial law, as embodied in Book 5 of the Commercial Code, was completely modernised and redrafted by the Law of April 20 2013. Other aspects – in particular, maritime labour law – have been similarly modernised.
Germany is not a party to the major international conventions, such as the Hague-Visby Rules or the Hamburg Rules. However, it is still bound by the original Hague Rules 1924, which have not been denounced. This leads to some particularities with regard to carriers’ liability in relation to the few states that are equally party only to the original Hague Rules (not having ratified the Visby Protocol) – mainly, the United States (for details please see Article 6 of the Introductory Law of the Commercial Code).
Which ships are eligible for registration in the national shipping register(s) and which parties may register ships?
Eligible for registration in the national shipping register are commercial or other seagoing ships which are obliged or permitted to fly the German flag. The shipping register is administered by the lower court of the home port or, if there is no home port in Germany, at a place to be chosen by the applicant. Inland navigation craft are registrable in a separate register.
The German flag must be flown by every seagoing ship longer than 15 metres that belongs to a German owner (a natural person or certain German corporations) whose habitual residence or seat is in Germany. The German flag may be flown in some other cases, particularly by residents of other EU member states whose residence is in Germany. Corporations that were formed in accordance with the legal provisions of an EU member state can register their vessels in Germany, provided that they appoint one or more responsible persons whose habitual residence is in Germany or a representative or seat in Germany to ensure compliance with the applicable technical, social and administrative provisions.
What are the procedural and documentary requirements for registration?
The owner must provide the court with certain data regarding the ship. Further, the owner must:
- prove its acquisition of title in the ship; and
- state the legal grounds for this acquisition of ownership and the basis of its right to fly the German flag.
Most of the prescribed information must be disclosed by means of public or certified deeds. The assessment of compliance with international regulations or conventions falls within the competence of the Federal Maritime and Hydrographic Agency in Hamburg (for further details please see the Register of Ships 1940, as redrafted in 1994).
Grounds for refusal
On what grounds may a registration application be refused?
In particular, registration may be refused on the following grounds:
- lack of right to fly the German flag;
- entry of the ship in a foreign shipping register; or
- non-compliance with applicable international conventions or regulations in respect of technical, social or administrative matters.
Are there any particular advantages of flying your jurisdiction’s flag?
Among other things, flying Germany’s flag:
- creates the presumption that the vessel is a ship (and not an inland navigation craft with different legal characteristics);
- provides proof that the ship has the right to fly the German flag;
- creates the presumption of the registered owner’s ownership (to exclude bona fide acquisition by a third person, which is possible even when a ship is not included in the register);
- provides commercial advantages (as a ‘white list’ flag state); and
- is a prerequisite for registration of mortgages on the ship.
Liens and mortgages
How are encumbrances such as maritime liens and mortgages registered in your jurisdiction and what are the effects of registration?
Mortgages must be registered in the ships register as a condition of validity. The shipping register is administered by the lower court of the home port.
Conversely, maritime liens come into existence by law and cannot be registered in the shipping register. Nonetheless, they can be invoked against any owner and future owner, regardless of whether it knew of the lien.
Securable claims and priority
What claims can be secured by maritime liens and what is the order of priority?
Liens are granted by law for the following claims against a shipowner or demise charterer:
- claims for wages due to the master and the rest of the shipping company;
- claims for public charges, such as vessel charges, port, canal and other waterway dues and pilotage fees;
- claims for damages resulting from death or personal injury, as well as from the loss of, or damage to, property occurring in direct connection with the ship’s operation. However, claims resulting from the loss of, or damage to, property that are based on a contract or that could be derived from a contract are excluded;
- claims for a salvage reward, special compensation and the costs of salvage;
- claims against the shipowner and the creditor of the freight for contribution in general average;
- claims for wreck removal; and
- social security authority claims against the shipowner, including unemployment insurance claims.
The abovementioned maritime liens take priority over all other liens (including mortgages) over the ship. They also take priority insofar as property liable to customs duties and taxes stands as security for public charges pursuant to statutory regulations.
Other liens of maritime lienors rank in the order in which the corresponding claims are listed above. However, liens for the claims listed in bullets four to six take priority over liens for any earlier claim.
Under what circumstances are maritime liens extinguished?
Maritime liens are extinguished after one year, unless the ship has been arrested during that period.
Are foreign liens recognised in your jurisdiction?
While foreign liens are recognised, they take priority only within the specified order or, if there is no similar lien under German law, after that order. This applies, for example, to liens regarding damages to goods under a contract of carriage governed by US law.
Transfer and assignment
Which rules govern the transfer and assignment of liens, mortgages and other encumbrances?
Mortgages and liens secure certain claims; they follow their assignment and extinguishment.
Grounds for arrest
Under what circumstances can a ship be arrested in order to secure a claim against it?
A ship can be arrested to secure any claim against its owner which is for payment or which may be transformed into a monetary claim, provided that the owner’s liability is not restricted to one other particular asset (eg, in the case of a maritime lien, charging only a sister ship).
Can a ship be arrested to secure a non-maritime claim?
A ship can be arrested to secure non-maritime claims unless the Arrest Convention 1952 applies, which restricts an arrest to certain maritime claims listed therein. Germany is a party to this convention.
Can a ship be arrested to secure a claim against a sister ship?
Sister ships can be arrested like all other assets of the owner against which the claim is directed.
What are the procedural and documentary requirements for seeking arrest of a ship?
The applicant must show to the court’s satisfaction the existence of the claim to be secured by arrest. Whereas in general law the applicant must show that there is a special reason to secure the claim for the sake of later execution, this requirement was abolished by the maritime law reform in 2013. As regards ship arrests, there is no longer any need to show that the execution of the claim is in danger.
What security must the arresting party put up in order to secure arrest of a ship and how is this security calculated?
A court may demand that the applicant provide security – mostly by bank guarantee – if it has remaining doubts as to the validity of the arrest claim. The amount is subject to estimation and will be determined according to the likelihood of damages which:
- could be caused to the owner; and
- would have to be compensated by the applicant in case the arrest later turns out to be unjustified.
German law is rather strict in regard to the applicant’s obligation to remunerate damages suffered by the owner if the arrest turns out to have been unjustified, even if the applicant was not negligent.
What security can the arrested party provide for release of an arrested ship?
The arrest will be released if the owner provides security for the arrest claim. The required security and its amount is stated by the court in the arrest order.
Judicial sale of ships
What is the legal procedure for the judicial sale of ships in your jurisdiction?
The judicial sale of registered ships follows the rules on the judicial sale of real estate: it will be performed by a court by means of a forced sale.
Under what circumstances are foreign sales recognised?
Foreign sales are, in principle and under EU law, recognised. However, if the creditors secured by liens or mortgages are not recognised under German law, they may claim compensation against each other in Germany. Most foreign judicial sales are recognised, unless a party can establish reasons why the foreign judicial sale has been performed contradictory to basic German rules.
Limitation of liability
What parties may limit liability for maritime claims?
Germany is a party to the Limitation Convention 1976, as amended by the Protocol 1996. According thereto, owners, charterers, managers and operators of seagoing ships, as well as salvors, may limit their liability.
For what claims can liability be limited? Are any claims explicitly exempt from the limitation of liability?
Liability may be limited for the maritime claims listed in the Limitation Convention – in particular, for claims in respect of:
- loss of life or personal injury;
- loss of or damage to property occurring on board or in direct connection with the operation of the ship or with salvage operations; and
- consequential loss resulting therefrom.
Under German law, claims of crew members are exempt from the right to limitation if the contract is governed by German law, as are claims for the reimbursement of the costs incurred in pursuing legal action.
Moreover, German law provides for specific rules, as permitted by Article 18 of the Limitation Convention, for the limitation of claims for wreck removal. Further, there are specific rules for:
- small ships (under 250 tons);
- damages to harbours and waterways; and
- pilots’ liability.
What limits are set for eligible claims?
The limitations fixed in the Limitation Convention were increased by an International Maritime Organisation Resolution in 2012, which has applied in Germany since June 8 2015.
Accordingly, the German courts apply the following limits of liability for claims arising on any distinct occasion, other than those of passengers.
- In respect of claims for loss of life or personal injury, the limit of liability is 3.2 million special drawing rights (SDR) for a ship with a tonnage not exceeding 2,000 tons.
- For a ship with a tonnage in excess thereof, the following amounts apply in addition to the above amount:
- 1,208 SDR for each additional ton between 2,001 and 30,000 tons;
- 906 SDR for each additional ton between 30,001 to 70,000 tons; and
- 604 SDR for each additional ton in excess of 70,000 tons.
In respect of other claims, the following limits apply:
- For ships with a tonnage not exceeding 2,000 tons, the limit of liability is 1.51 million SDR.
- For ships with a tonnage in excess thereof, the following amounts apply in addition to the above amount:
- 604 SDR for each additional ton between 2,001 and 30,000 tons;
- 453 SDR for each additional ton between 30,001 and 70,000 tons; and
- 302 SDR for each additional ton in excess of 70,000 tons.
What rules and procedures govern the establishment of limitation funds?
The establishment and distribution of a limitation fund is governed by the Shipping Distribution Statute 1986, as amended in 2013.
How are liability funds distributed?
According to the Shipping Distribution Statue, the fund is established and distributed by a court in accordance with the specific rules of the statute.
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.
Collision and pollution
What rules and procedures (under both domestic and international law) apply to the prevention of, liability for and remedy of:
The Collision Convention 1910.
(b) Oil pollution?
The Convention on Civil Liability for Oil Pollution Damage 1992, the Convention on the Establishment of an International Fund for Oil Pollution Damage 1992 and the Convention on Civil Liability for Bunker Oil Pollution Damage 2001.
(c) Other environmental damage caused by a ship?
Specific conventions are not yet in force for Germany. Therefore, liability follows the ordinary rules regarding damage to property.
What is the legal regime governing salvage and general average?
The International Convention on Salvage 1989 and German law (although the York-Antwerp-Rules are generally agreed).
Places of refuge
What framework governs access to places of refuge for ships in distress?
The International Maritime Organisation Guidelines on Places of Refuge for Ships in Need of Assistance (Resolution A.949(23)) and the EU Directive Establishing a Community Vessel Traffic Monitoring and Information System (2002/59/EC), dated June 27 2002.
What rules and procedures apply to the removal of wrecks in your jurisdiction?
The Convention on Wreck Removal (Nairobi, 2007) has applied in Germany since April 14 2015. It regulates wreck removal in combination with the Ordinance on the Proof of Legislation for the Disposal of Waste. The federal authorities can order and – at the owner’s expense – perform wreck removal if the wreck presents a danger to the environment or to shipping.
Under what circumstances can the authorities order removal of wreckage?
The Convention on Wreck Removal obliges owners and empowers coastal state authorities to raise wrecks in the exclusive economic zone. National law applies to wrecks in internal waters or the coastal sea and empowers local authorities to raise a wreck if it presents a danger to the environment or to shipping.
What maritime risks must be covered under the law and what is the mandatory level of coverage?
The transport of oil must be covered under the Convention on Civil Liability for Oil Pollution Damage 1992 and wreck removal must be covered under the Convention on Wreck Removal (Nairobi, 2007 – applicable in Germany since April 14 2015).
Insurable risks and ships
What other risks are typically covered by marine insurance contracts concluded in your jurisdiction and what ships are insurable?
Other risks typically covered by maritime insurance contracts are:
- liability (mostly covered by protection and indemnity (P&I) clubs);
- hull damage; and
- freight, demurrage and defence.
In general, all ships are insurable except nuclear-powered ships, for which special rules apply.
What is the legal regime governing marine insurers’ subrogation rights?
There is no mandatory subrogation of rights. Rather, it follows the agreed rules (eg, P&I club rules or the General Rules of Marine Insurance or the Transport Information Services hull clauses).
Jurisdiction and dispute resolution
What courts are empowered to hear maritime cases in your jurisdiction?
The competence of courts follows the general civil jurisdiction rules. There are almost no courts specialised in maritime matters, except with regard to inland waterway cases and where particular courts have installed special chambers (eg, Hamburg courts).
Exclusive jurisdiction and arbitration clauses
Under what conditions will exclusive jurisdiction and arbitration clauses in shipping contracts be held as valid?
Agreements on exclusive jurisdiction and arbitration clauses are valid in all but exceptional cases where they are used to try to avoid the required minimum level of liability.
What is the general state and prevalence of maritime arbitration in your jurisdiction?
Maritime arbitration is common in Germany, particularly under the rules of the German Maritime Arbitration Association.
Recognition and enforcement
What regimes govern the recognition and enforcement of foreign judgments and arbitral awards?
The New York Convention 1958 and EU rules.
What regime governs the imposition of security measures on ships and in port facilities?
Depending on the individual case, the following regimes apply:
- the Act on the Tasks of the Confederation in the Field of Maritime Navigation;
- the Safety of Life at Sea Convention;
- the International Ship and Port Facility Security (ISPS) Code; and
- federal and local laws on public security and order.
What rules apply to the qualification and conduct of security officers on ships and in port facilities? Are armed guards allowed on ships?
Yes – armed guards are allowed on ships if they comply with the Regulation on the Safeguarding of Seagoing Ships in order to Prevent External Dangers.
What rules govern the provision of security information to port authorities?
The ISPS Code and the Regulation on the Safeguarding of Seagoing Ships in order to Prevent External Dangers.