Adjustment

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The average statement ( English average adjustment ) is in the maritime and insurance a statement with which an expert ( dispatchers ) in the Great wreck the distribution of damage makes to the participants.

General

According to the lawyer Hermann Langenbeck , Philip II introduced the word as part of his insurance law of 1563 for the handling of accidents. This clearance ( Spanish dispacho ) came into the French language, where the word was borrowed as sea damage calculation ( French dispache ). It appeared in a book by the constitutional law teacher Karl von Kaltenborn-Stachau on European maritime law in 1831 , and in a German dictionary in 1838. A nautical dictionary from 1850 explained the term as an estimate and calculation of a marine damage and an average.

Participants in the adjustment are the shipowner , the freight debtor and the owner of the cargo .

Legal issues

The "general average" is a ship accident in which, according to Section 588, Paragraph 1 of the German Commercial Code, the ship , fuel , cargo or several of these items are deliberately damaged or sacrificed to rescue from a common danger by order of the captain ( sea ​​litter ). If there is a "General Average" so have the German Maritime Law stakeholders (shipowners, cargo debtor and cargo owners) jointly or severally liable , the resulting damage to wear and expenses proportionately.

A prerequisite for the creation ("presentation") of an average is the declaration . In it the captain reports on the ship accident. The subsequent layout of the average is incumbent on the average person, who must receive an order for this from one of the parties involved ( Section 595 (1) HGB). The average is drawn up by a publicly appointed expert or an expert specially appointed by the court ( average person ) (Section 595 (2) HGB). In October 1880, the Imperial Court of Justice (RG) already saw the dispute in the event of a major average as permissible. In the average as an invoice for the general average , the average damage is distributed among the parties involved.

As a legal term , the average also appears in the context of voluntary jurisdiction in Section 404 (2) FamFG , according to which the average adjuster is obliged to allow everyone involved to inspect the average. If the average adjuster rejects the order of a party to prepare the average because there is no case of general average, the court decides on the obligation of the average person at the request of the party in accordance with Section 403 FamFG. The legally confirmed average is an enforcement order ( Section 409 (2) FamFG). In § 68 GNotKG the business value of the average in court proceedings is defined.

In inland waterway transport , there is no talk of adjustment. Pursuant to Section 11 (1) of the BinSchG , an application must be made to obtain evidence of the actual course of events and of the extent of the damage and of the means used to prevent or reduce it. Section 78 BinSchG regulates the major average for inland shipping.

insurance

In transport insurance, the average is the documentation of the recognized costs, sacrifices and losses and their distribution in the event of a major average. It is drawn up by the dispatcher at the request of the shipping company or the master. The policyholder must send the insurer a loss invoice based on the York-Antwerp rules . The scope of the insurer's liability is determined by the average in accordance with Section 30 ADS .

literature

Individual evidence

  1. ↑ Herman Langenbeck, Notes on the Hamburg Ship and Sea Law , 1727, p. 192
  2. ↑ Today the dispache is called in Spanish arbitraje
  3. ^ Karl von Kaltenborn-Stachau, Principles of the Practical European Law of the Sea , Volume 2, 1831, p. 222 ff.
  4. ^ Johann Friedrich Schaffer, New French-German and German-French Dictionary , Volumes 2-3, 1838, p. 166
  5. ^ Eduard Bobrik, General nautical dictionary with factual explanations , 1850, p. 238
  6. ↑ BT-Drs. 17/10309 of July 12, 2012, draft law for the reform of maritime trade law , p. 125
  7. ^ RG, judgment of October 30, 1880, Rep. I 827/80
  8. ^ BGH, judgment of January 26, 1959, Az .: II ZR 119/57
  9. ↑ Jörg Freiherr Frank von Fürstenwerth / Alfons Weiss, VersicherungsAlphabet (VA) , 2001, p. 173
  10. ↑ Jochen Ohling, Handbook Export - Import - Spedition , 1986, p. 267 f.
  11. ^ Carl Ritter, Das Recht der Seeversicherung , Volume 1, 1967, p. 511