When a sea carrier files for insolvency in the course of a sea carriage, considerable additional costs and expenses occur in the effort to deliver the cargo to the consignee. German law applies if a German freight forwarder is instructed with a multimodal carriage including a sea leg. This results in the general legal obligation for the forwarder to conduct the transport itself or with subcontractors in order to deliver the cargo to its destination for the fixed freight agreed.
The Higher Regional Court of Hamburg recently clarified the fact that goods having been packed in a container made available to a shipper by a carrier on a decoupled trailer belonging to the carrier is insufficient grounds for the carrier to have accepted the goods for carriage. The court set out the prerequisites for a carrier's acceptance of goods under Section 425 of the Commercial Code, as established in case law.
The Federal Court of Justice recently ruled that the loss of transported goods occurs when a freight forwarder or carrier is unable to deliver the goods to the authorised recipient for an indefinite time. It is sufficient that late delivery is unlikely or unacceptable. Once the goods are lost, it is irrelevant whether they are located.
The owner of a German-flagged yacht was sued by another German-flagged yacht owner for compensation after the yachts collided in bad weather. The first-instance court dismissed the claim on the basis that the claimant did not sufficiently prove the defendant's negligence. The claimant appealed to the higher regional court, which clarified the ambit and scope of prima facie evidence for maritime law.
If carriers enter a contract to undertake cross-border transport for a new client, it is advisable to ascertain the shipper's experience regarding customs duties and necessary documentation. Carriers otherwise risk being held responsible if the wrong customs clearances lead to unexpected payments. The Aurich District Court recently dealt with a typical case that demonstrates the pitfalls of a contract for transportation and customs declaration of cargo.
A tanker barge was anchored in an area where anchoring was prohibited. During a manoeuvre, the vessel ran aground and was secured with an anchor, blocking the marina entrance and preventing the claimants' vessels from leaving the marina. The claimants claimed damages on the basis of Section 823 of the Civil Code, asserting that their property had been interfered with.
In two recent cases, the Rostock District Court decided that cruise ship passengers are not entitled to claims for repayment or damages due to unpleasant noises or vibrations which are attributable to the normal course of operation of a cruise ship. This is because a ship, in contrast to a hotel, is a means of transportation which cannot be operated without any noticeable vibrations or noise-producing units.
One of the main reasons that the Nairobi International Convention on the Removal of Wrecks entered into force was the lack of authority of the coastal states within the exclusive economic zone (EEZ). This regulatory gap has now been filled, but the consequence – particularly for Germany – is an intricate situation due to the different legal frameworks between the convention regulations applicable in the EEZ and the national regulations applicable in the German territorial sea.
The leading unions of forwarders and cargo interests have both agreed to recommend the new Freight Forwarders' Standard Terms and Conditions (ADSp 2017). The ADSp 2017 are the result of long negotiations aiming to modernise the former version of the ADSp adopted in 2003. The ADSp 2017 will clarify many aspects of daily business; however, daily practice and the courts will ultimately decide on the relevance of some of the clauses, which might be held invalid under the law.
In view of the Baltic and International Maritime Council's recent decision to incorporate the York-Antwerp Rules 2016 into its standard contracts, the amendments appear to have been accepted by the ship-owning community. Under German law, the York-Antwerp Rules are treated as standard terms and conditions. As such, they are subject to the Civil Code sections which deal with unfair contract terms.
In a recent Federal Court of Justice case, 230 phones were reported missing following their delivery via road and air. As it was unclear where the damage had occurred, the court had to decide whether the road carriage formed an ancillary feeder service within the meaning of the Montreal Convention. The decision confirms the court's 2012 ruling that road carriage performed as part of a contract of carriage by air is not ancillary where carriage by air would have been possible.
The Koblenz Regional Court recently decided that according to the Convention on the Contract for the International Carriage of Goods by Road (CMR), a carrier's direct claims against the consignee are barred, even where the sender faces insolvency. The decision is not yet legally binding but it has clarified that a CMR freight contract should be for the benefit of third parties.
In a recent case the sender believed that damage to its goods which occurred during shipping had been caused by rough treatment of the container and sued the carrier for damages. The carrier argued that the goods had been damaged due to insufficient packaging. As it was unknown where the damage occurred, the court applied (land) transport law. The court saw no indication of reckless behaviour by the carrier and dismissed the claim.
The Local Court of Hamburg recently contradicted a Regional Court of Bremen decision regarding whether vessels are protected from arrest during preliminary insolvency proceedings. The Hamburg court agreed that vessels should be treated as immoveables. However, it made no exception for vessels located abroad.
The Federal Court of Justice has upheld a finding that a contract entered into between a terminal operator and a charterer was not a contract of carriage. In particular, the courts did not err by deviating from a line of precedents according to which a contract on cargo handling is usually subject to land transportation law. The case at hand could be distinguished from those cases as the terminal operator was also obliged to store the goods.
Under the Insolvency Act, claims by an insolvent creditor remain enforceable. However, due to certain restrictions, debtors of a bunker supplier may be prohibited from effecting payment to the insolvent company directly. The risks for vessel owners and charterers arising as a result of the insolvency of a contractual bunker supplier are complex. The best way forward is risk awareness when negotiating supply contracts and charterparties.
In case of unpaid bunker deliveries, the risk that a vessel will be arrested in Germany is limited. It may be present if there are direct contractual relations between the vessel owner and bunker supplier or if the physical bunker supplier has a maritime lien in respect of the vessel. If the vessel arrest turns out to be unlawful, the vessel owner may claim damages from the arresting party.
The Federal Court of Justice recently held that a warehouse keeper's duties to select suitable storage facilities and to notify the principal when moving goods to a third-party warehouse comprise fundamental duties of contract. The breach of such contract deprives the warehouse keeper of the right to limit its liability. The notification must be so clear that it leaves no doubt that the goods have already been moved.
The Dusseldorf Higher Regional Court recently confirmed that the limitation of the policy territory in a carrier's liability insurance policy is based on the relevant transportation contract and whether it is entirely within the described territory or beyond it. The territory in which the damage occurs is irrelevant. The advantage of this approach is that it makes the question of cover easier to answer.
The Federal Court of Justice has clarified that independent and unauthorised actions will not establish necessary custody of damaged goods for strict liability. Any freight forwarder on a fixed-price contract should pay attention to briefing its staff regarding their involvement in loading operations. In the absence of special contractual stipulations, staff should abstain from loading, as possible neglect may lead to liability.