Bodmerei
Bodmerei ( English bottomry , derived from English bome , synonymous with keel , or from "bottom", i.e. the bottom of the ship, as the main component of the ship; French prêt à la great aventure ) was in maritime trade law a during the sea voyage between a captain or supercargo and a lender closed loan agreement in which the ship and / or cargo as collateral served.
General
All assets can be lent , so that credit can also be taken out on ships . They then represent the loan object for the lender . The Bodmerei only concerned ships that were at sea and was therefore not general ship financing . Bodmerei was abolished in Germany in April 1973. When present form of ship financing there is the ship mortgage , which according to § 8 para. 1 diagonally in conjunction with § 3 diagonally and § 24 diagonally to secure a claim , a ship in the manner charged that the creditor is entitled to his satisfaction from the ship to seek through its recovery .
history
The Roman law knew the based on Greek roots Seedarlehen ( Latin foenus nauticum ), a subspecies of mutuum . The debtor received a loan with which he could finance sea transport and the purchase of goods. The loan was mostly repayable at the port of destination where the goods were delivered. The loan did not have to be repaid if the pledged ship went down; the creditor thus bore the risk of the sea .
From this developed in the Middle Ages the so-called Großaventurei , a sea loan agreement, which is particularly common in France and England, which was concluded for the acquisition of goods that were to be sent by sea and in which the creditor was granted a premium and a lien on the goods to be shipped Takeover of the sea risk was granted. The Bodmerei finally emerged from the Großaventurei, for which the rule was that whoever was authorized to pledge the object in question, that is, with regard to the ship of the shipowner , with regard to the ship's cargo of the shipper, could verbodmen . The skipper was also allowed to pledge the ship, freight and cargo under certain conditions during the voyage.
In the High Middle Ages , the pledging of the ship or ship part exposed to maritime danger was assumed, for example around 1250 in the Rôles d'Oléron (Article 122) or in Lübeck (1387). The law of the sea of Wisby (Art. 40) mentioned the Bodmerei in 1407, because money could be given on the bottom (bome) of the ship. However, the Hanseatic League issued a ban on Bodmere in 1418 due to abuse. The word “Bodmerei” came from Flanders , where it first appeared in 1549 as “bomerie” and then in 1551 as “bomerije”. In 1605, the Hamburg court code spoke of "taking up gel on boͤddemerey". The Middle Low German "bodem" in turn meant "ship bottom". After 1730, George II decreed that Bodmerei ("Respondentia") was only allowed with his subjects on East India journeys.
The General Prussian Land Law (APL) of June 1794 presented a legal definition : "Bodmerey is a loan contract in which the creditor, because of the pledging of a ship, or the cargo of the same, or both together, assumes the sea risk" (II 8, § 2359 APL ). According to § 2370 APL, the wages could not be prohibited, § 2376 APL forbade the prohibition of already insured items, according to § 2406 APL, the ship and cargo usually had to be pledged. Since the lender bore the transport risk and the loan was not repayable when the ship went down, the Bodmerei can also be seen as an insurance policy ; the lender was also the insurer .
The French Code de Commerce of September 1807 provided for regulations in Art. 334 ff. The landlocked state of Austria also regulated the “Bodmerey” from January 1812 in Section 1292 of the Austrian Civil Code (ABGB) ; it expired in December 2016. There it was one of the "happiness contracts", "whereby the hope of an as yet uncertain advantage is promised and accepted". According to § 1269 ABGB, luck contracts are “the bet ; the game and the lot ; all purchase and other contracts drawn up about hoped-for rights or about future as yet undefined things (hope purchase, the author); furthermore, the annuities ; the social institutions; finally the insurance and Bodmerey contracts ”. Under “Bodmerey”, Austrian commercial law only understood the loan. The German ADHGB of May 1861 dealt with "improper Bodmerei" in Art. 701 ADHGB. The HGB took over the Bodmerei in January 1900 (§§ 679–699 HGB old version). With the Law of the Sea Amendment Act of June 21, 1972, among other things, the provisions on the Bodmerei were no longer applicable.
Legal issues
The Bodmerei was intended as a pledge , in which generally only the owner of the thing can grant the security buyer (lender) a contractual lien . In the case of Bodmerei , that would be the shipowner , but as an exception the captain or supercargo were also allowed to pledge the ship as the mere owner (“actual Bodmerei”). This was a special case under maritime trade law, according to which a non-owner was legally allowed to pledge third-party assets .
The lender was called the ship's creditor (§ 754 HGB old version), whose contractual lien was the ship's assets (ship and accessories , § 755 Paragraph 1 HGB old version), the ship's cargo (§§ 726, 753 Paragraph 1 HGB old version). F.) and the gross freight (§ 756 HGB old version). According to § 679 HGB a. F. Bodmerei was a " loan transaction , which is entered into by the skipper (ship's captain) as such by virtue of the powers granted to him in this code, with the assurance of a premium and with pledging of the ship, freight and cargo or of one or more of these objects of the kind that the creditor, because of his claims to the pledged (verbodmeten) objects after the arrival of the ship, can hold himself at the place where the voyage for which the transaction was concluded (Bodmereireise) ”(actual Bodmerei). The Bodmerei required the written form in the form of a Bodmereibriefs or Bielbrief ( Italian Cambio marittimo ; § 682 HGB old version ), which as approved order paper (§ 684 HGB old version ) was transferable by endorsement according to § 363 HGB . The transfer of the Bodmereibrief also meant the transfer of the ship's cargo ( traditional paper ). The obligee was not hit by an average , but he carried the transport risk with the risk that the pledged objects were insufficient to satisfy him (§ 690 HGB old version: "Everything that the land brings to land is liable").
Unless a different provision was made in the Bodmereibrief itself, the Bodmere debt was due in the port of destination of the voyage and on the eighth day after the ship's arrival in this port . From the date of payment, interest of 6 percent was payable on the Bodmereischuld including the premium. Even before the statutory interest rate restrictions were lifted, the amount of the premium was left to the free discretion of the contracting parties due to the risk associated with the Bodmerei.
Demarcation
Carl Günther Ludovici pointed out in 1798 that the Bodmerei differed from the Großaventurei in that the former enabled the ship and its accessories and / or the ship's cargo to be pledged, while the Großaventurei only concerned the pledging of the ship's cargo.
International
In England , the Bodmerei ( English bottomry ) was part of common law , for which Baron Tenterden created comprehensive regulations in 1802 . The Bodmerei already lost its importance in the 19th century, today sea liens ( English maritime liens ) are common, which have been recognized in Art. 22 Supreme Court Act since 1981 . However, only allowed to salvage ( English salvage ), compensation for damage caused by ships ( english damage done by a ship ), wages ( english wages ), Captain shops ( English Master's disbursements ) and Bodmerei be financed.
In France , the Bodmerei ( French prêt à la große aventure ) was abolished in January 1969, the corresponding mention in Art. 1964 Civil Code was dropped in May 2009.
In the US , the Federal Maritime Lien Act of 1910 and the Ship Mortgage Act of 1920 have been combined in the Commercial Instruments and Maritime Lien Act since November 1988 .
literature
- Stephan Schuster: The sea loan in the court speeches of Demosthenes. With an outlook on the further historical development: dánein nautikón, fenus nauticum and Bodmerei. Duncker & Humblot, Berlin 2005, ISBN 3-428-11778-6 .
Web links
Individual evidence
- ↑ Rolf Herber, Maritime Trade Law: Systematic Presentation , 2016, p. 12
- ^ Lex. 1 Digest, 22, 2; Cod. 4, 33
- ^ Heinrich Honsell , Römisches Recht , 5th supplemented edition, Springer, Berlin et al., 2001, p. 120
- ↑ Bibliographisches Institut (Ed.), Meyer's Konversationslexicon , Volume 3, 1874, p. 420
- ↑ Carl von Kaltenborn-Stachau, Principles of the Practical European Law of the Sea, especially in Private Traffic, Volume II, 1851, p. 242
- ^ Günter Krause, Handelsschifffahrt der Hanse , 2010, p. 241
- ↑ Placcaet-Boeck van Vlaenderen, Behelsende alle de Placcaeten, Ordonnantien ende Decreten ... van den Jaere 1152 , Volume I, 1639, p. 370
- ↑ The City of Hamburgk Court Rules and Statutes , 1605, II 18, Art. 1
- ↑ 19, Georg II., C. 57, § 5
- ↑ General Land Law for the Prussian States , Part 3, 1794, p. 682
- ^ Karl von Kaltenborn-Stachau , Principles of the practical European law of the sea, especially in private traffic , Volume II, 1851, p. 244
- ↑ Franz Petter, Theoretical-Practical Textbook of Commercial Accounting Science , 1826, p. 342 f.
- ↑ BGBl. I 1972, p. 966
- ↑ Carl Günther Ludovici, Encyclopädisches Kaufmannslexicon , Volume 3, 1798, Col. 501
- ↑ Bastian Schmidt-Vollmer, Ship creditors' rights and their assertion , 2003, p. 119
