Average

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With general average is referred to in the Marine the pecuniary settlement of a disaster . Average damage is of particular importance for maritime trade law , but also for inland shipping .

Basics

In Germany, average for maritime trade law is regulated in Sections 588 et seq. Of the Commercial Code (HGB), for inland navigation in Section 78 Inland Navigation Act (BinSchG).

An average can result in a number of consequential damages, for example due to environmental damage or claims for damages by third parties.

For the assessment to determine and regulate damage, an average commissioner or an average agent is often used, who is commissioned by the shipping company , an insurance company or the sender of the goods to draw up a damage distribution plan or an average. The question of who or what caused the accident and who can be held liable for damage is also of great importance in this regard.

In practice, the contracting parties regulate possible cases of average, in particular general average, often in advance by contract; this is often due to the so-called. Antwerp York Rules (ger .: York-Antwerp Rules in short: YAR ) reference (the most common are still the YAR 1994).

Types of average

In the past, German maritime trade law distinguished three different types of average, large, small and special. The small and the special average were repealed when the law reforming maritime trade law came into force on April 25, 2013, so that since April 25, 2013 only regulations on major average have existed. Transitional regulations on matters that occurred before that are laid down in Art. 71 of the Introductory Act to the Commercial Code (EGHGB).

Great average

(= also known as common average or large average ; English general average , French avarie commune )

If the ship or the passengers are in a dangerous situation and the captain then decides to deliberately damage the ship or the cargo in order to save the ship, crew and cargo from a common danger ( § 588 HGB new version), then it is a great accident . The prerequisite is the entire or partial rescue of the ship and the cargo. For such costs, which ultimately benefit everyone, since they save the ship and cargo by and large, the ship, cargo and cargo should then be paid jointly. Conversely, this also means that the general average does not come into play if the ship and the rest of the cargo cannot be rescued despite these measures. The basic idea is that rescue measures that benefit everyone should also be paid for collectively, provided that the injuring party does not have to reimburse these costs anyway. The general average costs also include the other expenses to rescue the ship and cargo from a common danger.

In § 706 HGB (old version) a. the following cases of great average:

  • No. 1: Throwing cargo overboard (so-called sea ​​throwing ),
  • No. 2: Lightening cargo,
  • No. 3: deliberate stranding of the ship,
  • No. 6: Defense against pirates.

Damage to cargo and ship are also part of the costs of average as well as expenses of the shipowner (e.g. salvage or lightening or the cost of calling at an emergency port). The costs are borne jointly by the ship, freight and cargo (in Germany: §§ 591, 592 HGB new version). The proportions are determined from the value of the ship, the value of the cargo (including the damaged or sunk) and the cargo achieved during the voyage.

Small average

(= also Particular Average)

All costs of the voyage as pilotage , port charges , Beacon money , towage costs, cost of quarantine and Auseisung etc. were, according to § 621 HGB aF to the little general average expected.

Special average

The special average includes all damage caused by an accident (e.g. due to a ship collision, stranding) and costs that do not belong to the general average and do not represent ancillary costs to the freight. The explanatory regulation was § 701 HGB old version

If the damaging party did not bear the damage and costs to the cargo or the ship, the owners were in each case partly responsible for the expense. Here were damages caused to the ship by the shipper to wear, cargo damage caused by the shipper .

Inland shipping

The regulations on average and average in the area of ​​inland shipping can be found in Section 78 of the German Inland Shipping Act ( BinSchG ), which in turn partially refer to the corresponding provisions in the maritime trade law of the German Commercial Code .

jurisdiction

The procedure is assigned to voluntary jurisdiction ( §§ 402 ff. FamFG ).

See also

literature

  • on German law: (legal situation until April 24, 2013)
    • Herber, Rolf, Maritime Law. Systematic representation , Berlin 1999, publisher: de Gruyter, ISBN 3-11-016311-X .
    • ders., sea ​​freight contract and multimodal contract , RWS script 170, 2nd edition 2000, publisher: RWS, ISBN 3-8145-9170-4 .
    • Puttfarken, Hans-Jürgen: Seehandelsrecht , Verlag Recht und Wirtschaft, Heidelberg 1997, ISBN 3800511711 .
    • Prüssmann, Heinz; Rabe, Dieter (edit.): Maritime Trade Law: fifth book of the Commercial Code; with subsidiary regulations and international agreements , Verlag CH Beck, Munich 2000 (4th edition), ISBN 3406455107 .
    • Creifelds, legal dictionary , 19th edition Munich 2007, Verlag CH Beck, ISBN 978-3-406-553929 , keyword: Haverei
    • Hartenstein, Olaf / Reuschle, Fabian (eds.), Handbook of the specialist lawyer for transport and forwarding law , 2nd edition, Cologne 2012, Verlag Carl Heymanns, ISBN 978-3-452-27562-2 (Chapter: 4: Sea freight law ; Marginal number 304 ff .: large average)
  • on German law: (new legal situation from April 25, 2013)
    • Czerwenka, Beate, The law to reform maritime trade law. Introduction, explanations, synopsis, materials , Bundesanzeiger-Verlag, Cologne 2014, ISBN 978-3-89817-967-6 .
    • Oetker, Hartmut, short commentary on the HGB , 4th edition 2015, Verlag CH Beck, ISBN 978-3-406-67698-7 .
    • Munich Commentary on the Commercial Code, Vol. 7 - Transport Law, 3rd edition, 10/2014, Beck-Verlag Munich, ISBN 978-3-406-61027-1 [Note: with commentary from ADSp, CMR, MÜ, CMNI, COTIF and the new German maritime trade law!]
    • Hartenstein, Olaf / Reuschle, Fabian (ed.), Handbook of the specialist lawyer for transport and forwarding law , 3rd edition, Cologne 2015, Verlag Carl Heymanns, ISBN 978-3-452-28142-5 (Chapter: 4: Sea freight law )
    • Herber, Rolf, Maritime Law. Systematic representation , 2nd edition, Berlin / New York 2016, Verlag de Gruyter, ISBN 978-3-89949-211-8
    • Rabe, Dieter / Bahnsen, Kay-Uwe, Maritime Trade Law. Commercial Code, Ancillary Laws and International Conventions. Commentary , 5th edition, Munich 2017, Verlag CH Beck, ISBN 978-3-406-65238-7

Web links

Individual evidence

  1. ↑ HGB in the new version of the 5th book of the HGB - Maritime Trade Law - which has been in force since the law on the reform of maritime trade law came into force on April 25, 2013 .
  2. ↑ Until April 24, 2013, the general average was regulated in §§ 700 ff. Commercial Code (HGB).
  3. ↑ The York-Antwerp Rules (YAR for short) are international general terms and conditions for maritime trade law (last version as of May 2016).
  4. ↑ YAR 1994
  5. ↑ Quotation from p. 91, there para. 5, the justification for the law of the draft of the federal government (BT-Drs. 17/10309) of May 9, 2012. The final report of the expert group on the reform of maritime trade law , p. 9, 2 Indent, sentences 5 and 6; as well as explanations on §§ 571 ff. of the draft of the federal government, p. 164 ff.
  6. ↑ Until April 24, 2013: Section 700 HGB old version
  7. ↑ Hartenstein, Olaf / Reuschle, Fabian (eds.), Handbook of the specialist lawyer for transport and forwarding law , 2nd edition, Cologne 2012, Verlag Carl Heymanns, ISBN 978-3-452-27562-2 (chapter 4: Sea freight law; marginal 305)
  8. ↑ Note: This exemplary list was no longer included in §§ 588 ff. HGB new version. However, it can be assumed that these cases will continue to be regarded as typical cases of major average in the future.
  9. ↑ Until April 24, 2013: § 725 HGB old version