Hague rules

from Wikipedia, the free encyclopedia

As Hague Rules (English short. Hague Rules or HR ; complete: International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading ; dt .: Convention of 28 August 1924 for the Unification of Certain Rules Relating to Bills of Lading ) is an international Convention which lays down uniform rules of liability for the carrier vis-à-vis the charterer for shipments for which a bill of lading is issued. The Comité Maritime International had prepared the agreement . It was signed in Brussels on August 25, 1924.

The convention introduced compulsory liability of the sea carrier for the first time, which, however, brought with it a number of restrictions in favor of the carrier: In particular, the carrier is not responsible for the fault of his employees if this concerns the management or operation of the ship (so-called nautical Fault ). The carrier's liability was also limited to £ 100 in each case.

Development of the Hague Rules into the Hague-Visby Rules

In 1968, the Hague Rules were by the Hague-Visby Rules (English short. Hague-Visby Rules or HVR dt .: Protocol of 23 February 1968 amending the Convention of August 25, 1924 to unify the rules of bills of lading ) supplemented . There is only talk of the Visby Rules . The Comité Maritime International had also prepared this protocol . The protocol amending the Hague Rules was signed in Brussels on February 23, 1968. It was changed again by the protocol of December 21, 1979. Original languages ​​are French and English.

The scope of application of the Hague-Visby rules applies to all bills of lading that relate to the carriage of goods between two ports in different states, if the bill of lading is issued in a contracting state, the carriage begins in a contracting state or the Hague Visby rules are provided in the bill of lading (Art. 10 IHL). The Hague Rules and / or the Hague-Visby Rules (in the different versions of these rules in each individual case) are often specified by so-called Paramount clauses in bills of lading and thus agreed for the individual sea freight contract.

IHL redefined the amount of the limitation of liability, both in terms of the method of calculation and in terms of the currency standard applied (the protocol of December 21, 1979 changed over to the IMF's special drawing rights ). The limitation of liability was no longer based solely on the packaging or unit, but primarily based on weight. In maritime trade law, a very low maximum liability amount (2 SDRs per kilogram of goods transported or 666.67 SDRs per item or unit) was set. In addition, a special regulation was created for the transport of goods in containers. Compared to the Hague Rules, however, no significant changes have been made to the liability system; in particular, the carrier's exemption for nautical fault was retained.

Further development (Hamburg and Rotterdam rules)

The so-called Hamburg Rules (English for short: Hamburg Rules or HR ; German: UN Convention of March 31, 1978 on the Carriage of Goods by Sea ) came into force at the end of 1992. Original languages ​​are the six official languages ​​of the United Nations ( UN ).

Unlike the Haag-Visby Rules, the Hamburg Rules not only renew the Hague Rules and the sea freight law based on bills of lading, but also offer a new, comprehensive set of rules for sea freight law. Among other things, the exemption from liability for nautical fault will be eliminated. The deck loading of containers is also regulated for the first time. It should also be applicable to ocean freight contracts for which no bill of lading has been issued.

The Rotterdam Rules (English for short: Rotterdam Rules or RR ; in full: United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea ) as a new, extensive sea ​​freight agreement that the UN General Assembly agreed on in autumn 2008 , were signed by 16 states at the signing conference in Rotterdam on October 23, 2009 (ratifications by 20 states are required for entry into force; Art. 94 RR). In the meantime, the RR have been signed by 25 states, but have only been ratified by four states (Cameroon, Congo, Spain, Togo - as of January 18, 2018) and therefore cannot come into force for a long time. Original languages ​​are the six official languages ​​of the United Nations ( UN ) (penultimate paragraph of the RR).

The Rotterdam rules are also intended to regulate sea freight contracts for which no bill of lading has been issued. Multimodal contracts that include a sea route should also be taken into account.

Legal situation in Germany

In Germany, the Hague Rules were ratified with effect from January 1, 1940. The Hague-Visby Rules have not been ratified. In terms of content, however, both were incorporated into Book 5 of the German Commercial Code in 1940 and 1986, respectively , without affirming their direct applicability in German law. If a bill of lading has been issued, the Hague rules are to be applied from the German point of view, otherwise (German) international private law (until December 17, 2009: Art. 27 ff. EGBGB ; since December 17, 2009: Rome I Regulation of the EU).

According to the case law, the Hague Rules of 1924 are mandatory rules within the meaning of Art. 2 Paragraph 1 Clause 2 CMR.

The Hamburg rules have not been ratified by Germany and therefore do not apply to Germany either directly or indirectly.

The Rotterdam rules may still be ratified by Germany.

Since, for various reasons, Germany did not want to wait for the Rotterdam rules to come into force, work was carried out in parallel on their own draft for a new German maritime trade law. The law reforming maritime trade law came into force on April 25, 2013 (see Maritime Trade Law). Contrary to the proposals of the Expert Commission, the liability law has not been fundamentally changed, so that according to the requirements of Section 504 of the new version of the German Commercial Code (HGB), a maximum liability limit of 2 SDR / kg gross weight or 666.67 SDR per load unit or item - whichever is higher - applies (according to the liability provisions of the Hague Rules and the Hague-Visby Rules). The maximum liability limits do not apply in the event of willful or reckless damage ( § 507 HGB new version). However, the exemption from liability for nautical fault is initially excluded by law, but can be contractually reintroduced - also through terms and conditions ( Section 512 (2) No. 1 HGB new version).

literature

  • on German law: (legal situation until April 24, 2013)
    • Carl Creifelds : Legal Dictionary. Edited by Klaus Weber. 19th revised edition. CH Beck, Munich 2007, ISBN 978-3-406-55392-9 , keyword: shipowner.
    • Rolf Herber: Maritime Trade Law. Systematic presentation. de Gruyter, Berlin et al. 1999, ISBN 3-11-016311-X .
    • Rolf Herber: Sea freight contract and multimodal contract. Current developments. 2nd revised edition. RWS-Verlag Kommunikationforum, Cologne 2000, ISBN 3-8145-9170-4 ( RWS script 170).
    • Heinz Prüssmann: Maritime trade law. Fifth book of the Commercial Code. With subsidiary regulations and international conventions. Edited by Dieter Rabe. 4th revised edition. CH Beck, Munich 2000, ISBN 3-406-45510-7 ( Beck's short comments 9b).
    • Hans-Jürgen Puttfarken: Maritime Trade Law. Verlag Recht und Wirtschaft, Heidelberg 1997, ISBN 3-8005-1171-1 ( series Law of the international economy 53).
    • Olaf Hartenstein, Fabian Reuschle (Hrsg.): Handbook of the specialist lawyer. Part: Transport and forwarding law. 2nd edition, Verlag Carl Heymanns, Cologne 2012, ISBN 978-3-452-27562-2 , (Chapter: 4: Sea freight law).
    • Thomas Wieske, Transport law quickly captured , 3rd edition 2012, publisher: Springer, ISBN 978-3-642-29726-7
  • on German law: (new legal situation from April 25, 2013)
    • Beate Czerwenka, The law for the reform of maritime trade law. Introduction, explanations, synopsis, materials , Bundesanzeiger-Verlag, Cologne 2014, ISBN 978-3-89817-967-6
    • Oetker, Short Commentary on the HGB , 4th edition 2015
    • Munich Commentary on HGB, Vol. 7 - Transport Law, 3rd edition, 10/2014, Beck-Verlag Munich [Note: with commentary on ADSp, CMR, MÜ, CMNI, COTIF and the new German sea trade law!]
    • Hartenstein, Olaf / Reuschle, Fabian (eds.), Handbook of the specialist lawyer for transport and forwarding law , 3rd edition, Cologne 2015, Verlag Carl Heymanns (Chapter: 4: Sea freight law)
    • Rolf Herber: Maritime Trade Law. Systematic presentation. , 2nd edition, de Gruyter, Berlin / Boston 2016, ISBN 978-3-89949-211-8 .
    • Dieter Rabe / Kay-Uwe Bahnsen, Maritime Trade Law. Commercial Code, ancillary laws and international agreements. Commentary , 5th edition, Munich 2017, Verlag CH Beck
  • on international law:
    • Rolf Herber: Maritime Trade Law. Systematic presentation. , 2nd edition, de Gruyter, Berlin / Boston 2016, ISBN 978-3-89949-211-8 .
    • Dieter Rabe / Kay-Uwe Bahnsen, Maritime Trade Law. Commercial Code, ancillary laws and international agreements. Commentary , 5th edition, Munich 2017, Verlag CH Beck

Web links

Individual evidence

  1. ↑ a b Rolf Herber: Maritime Trade Law , 1999.
  2. ↑ Olaf Hartenstein, Fabian Reuschle (ed.): Handbook of the specialist lawyer. Part: Transport and forwarding law. 2nd edition, Verlag Carl Heymanns, Cologne 2012, ISBN 978-3-452-27562-2 , Chapter: 4: Sea freight law, Rn. 36
  3. ^ Jürgen Basedow, Der Transportvertrag , Tübingen 1987, publisher: CB Mohr (Paul Siebeck), ISBN 3-16-645200-1 , p. 264.
  4. ↑ United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (New York, 2008)
  5. ↑ Member States as of November 2018 (source: UNCITRAL): Armenia (29 September 2009), Cameroon (29 September 2009), Congo (23 September 2009), Republic of the Congo (23 September 2010), Denmark (23 September 2009) 2009), France (September 23, 2009), Gabon (September 23, 2009), Ghana (September 23, 2009), Greece (September 23, 2009), Guinea (September 23, 2009), Guinea-Bissau (September 24, 2009) 2013), Luxembourg (August 31, 2010), Madagascar (September 25, 2009), Mali (October 26, 2009), Netherlands (September 23, 2009), Niger (October 22, 2009), Nigeria (September 23, 2009) , Norway (23 September 2009), Poland (23 September 2009), Senegal (23 September 2009), Spain (23 September 2009), Sweden (20 July 2011), Switzerland (23 September 2009), Togo (September 23, 2009), USA (September 23, 2009)
  6. ↑ RGBl. 1939 II 1049
  7. ↑ on the applicability of IHL in German law cf. Art. 6 of the Introductory Act to the Commercial Code (EGHGB)
  8. ↑ The Hague Rules were essentially implemented through Section 662 of the old version of the HGB
  9. ↑ Olaf Hartenstein, Fabian Reuschle (ed.): Handbook of the specialist lawyer. Part: Transport and forwarding law. 2nd edition, Verlag Carl Heymanns, Cologne 2012, ISBN 978-3-452-27562-2 , Chapter: 4: Sea freight law, Rn. 45
  10. ↑ BGH, ruling v. December 15, 2011 - I ZR 12/11 -, transpr 2012, 330, regarding the question of whether, in the case of a CMR freight contract, if the goods are lost during piggyback transport on a partial sea route, according to the liability rules of the CMR or according to the Hague Rules (BGH applies the Hague rules in this specific case).
  11. ↑ http://www.seerecht.de/wp-content/uploads/dvis-dok-20090429-uncitral-dt-uebersetzung-int-befoerderung.pdf German working translation of April 29, 2009 by the BMJ of the final draft of the Rotterdam- Rules (PDF file available on the website of the "GERMAN ASSOCIATION FOR INTERNATIONAL MARINE LAW EV"; 173 kB)
  12. ↑ It is now also in dispute whether Germany can still ratify the EU itself after the entry into force of the Rome I Regulation or whether only the EU is entitled to the corresponding authority. see. Olaf Hartenstein, Fabian Reuschle (Hrsg.): Handbook of the specialist lawyer. Part: Transport and forwarding law . 2nd edition, Verlag Carl Heymanns, Cologne 2012, ISBN 978-3-452-27562-2 , footnote 35; with reference to Wagner, conflicting norms between the EU regulations Brussels I, Rome I and Rome II and legal instruments relating to transport , transpr 2009, 103, 108.
  13. ↑ Different from Section 607 (2) HGB in the version valid until April 24, 2013.
  14. ↑ Please also note the special legal regulation of Art. 6 Paragraph 1 Clause 1 No. 1 of the Introductory Act to the Commercial Code (EGHGB) new version] in the event that a Hague bill of lading has been issued!