seaworthiness
Seaworthiness ( English seaworthiness , French navigabilité , Dutch zeewardigkeit ) is in the Law of the Sea of adequate technical condition that sufficient crew and adequate supplies to and from ships .
General
Seaworthiness is understood as the suitability of a ship to withstand the inevitable dangers of the sea to which the ship is exposed on a specific voyage. These are especially storms and waves that the ship has to withstand. These must be passed by appropriate maneuvers by a qualified crew. Seaworthiness thus includes technical aspects ( hull and accessories ) on the one hand, but also sufficient personnel capacity and provisions on the other . Seaworthiness also includes the ability of a ship to travel and swim , to be moved on the water and to carry people and things. The relative seaworthiness , i.e. the suitability of the ship for the upcoming voyage at the agreed time of the year, is sufficient . In seafaring language , seaworthy and seaworthy are synonyms.
Colloquially we mean by seaworthiness, alternatively then frequently seaworthiness called the quality of driving and maneuvering a vessel in the water and its behavior in the seas .
history
The ADHGB dealt with seaworthiness as early as May 1861 . According to Art. 460 ADHGB, the skipper ( carrier ) had to ensure that the ship is “in seaworthiness, properly furnished and equipped, properly manned and provided with provisions and that the documents required for identification of the ship, crew and cargo are on board” . In addition, before starting the voyage, the skipper had to ensure that the equipment for loading and unloading was in good working order, that it was properly stowed according to seafaring practice and that it was not overloaded (Article 481 ADHGB).
These provisions were almost literally taken over by the Commercial Code (HGB) that came into force in January 1900 . It even provided for rules in the event of inability to repair or unworthiness to be repaired (Section 479 HGB old version). The law on the reform of maritime trade law of April 2013 brought serious changes with it, but left the provisions on seaworthiness in the HGB unaffected.
Legal issues
The establishment of seaworthiness is one of the main performance obligations of the carrier in the sea freight contract . Pursuant to Section 485 of the German Commercial Code (HGB), the carrier must ensure that the ship is properly furnished, equipped, manned and has sufficient supplies ( seaworthiness ). In order for the cargo to be fit for purpose, the holds, including the refrigeration and freezing rooms and all other parts of the ship in or on which goods are loaded, must be in the condition required for the reception, transport and maintenance of the goods. Cargo fitness is the ability of a ship to carry cargo on a voyage without risk of loss or damage.
Relative seaworthiness , i.e. the suitability of the ship for the upcoming sea voyage, is sufficient . It is the ability of the ship to make the planned voyage at the agreed time of the year with the specific cargo. "The seaworthiness is determined by the circumstances of the individual voyage", "it must be able to withstand the storm and the waves even on long journeys". Exceptional dangers such as typhoons or seaquakes are excluded from this. The absolute seaworthiness exists when a ship in general and independent of individual sea freight order is seaworthy.
The seaworthiness requirement has a direct impact on the liability and insurance issues of a shipping company . Under insurance law , the ship must be able to withstand the dangers inherent in the normal course of shipping . This includes not only the structural and material condition of the hull and the functionality of the main and auxiliary machinery, but also the good condition of the required facilities and equipment, the type of loading, the availability of the required crew and the necessary documents. According § 130 of Abs. 2 and 3 SG adheres the insurer for the damage , which the policyholder as a result of a collision suffer of ships; the insurance against the dangers of inland shipping includes the contributions to the general average , insofar as the average measure should prevent damage to be compensated by the insurer.
According to the General German Maritime Insurance Conditions of 1919 (ADS), it is up to the policyholder to prove in the event of damage whether a ship was seaworthy when the voyage began. The hull clauses of the German Transport Insurance Association from 1978 also apply as protection against damage from unseaworthiness if a ship's command is not responsible for this itself. The aforementioned rules are important insofar as they require the existence of complete and valid ship's documents as a condition.
International
Under seaworthiness ( English seaworthiness ) the international common law understands the condition of a ship, which enables a ship of this type and with the cargo with which it is loaded, the dangers of the sea, which are reasonably expected on the envisaged voyage can survive. A ship is considered seaworthy if it is prepared in every way to withstand the normal hazards of the voyage (Section 39 (4) Marine Insurance Act 1906, MIA). There is a strict liability obligation ( English warranty ) by carriers ( English carrier ).
For merchant ships is clear from the Hague-Visby Rules that a ship the equipment, manning, loading and stowage addition, in terms of both technical and structural point seaworthy about travel efficient and charge efficiently is. The shipowner must exercise due diligence in making the ship seaworthy before the start of loading and when starting the voyage in accordance with Art. 3 § 1 of the Hague Rules . These rules are implemented in the German Commercial Code and do not have to be agreed separately for sea freight contracts, because lit. (a) The Hague Rules concern the condition of the ship and its parts, (b) the manning, equipment and provisions, (c) the suitability of the cargo.
Individual evidence
- ↑ Dieter Rabe / Kay-Uwe Bahnsen, Seehandelsrecht , 2014, § 559 Rn. 5, ISBN 978-3406652387
- ↑ Michael Fuchs, The question of the insurability of ransom in piracy cases , 2014, p. 40
- ↑ Hans Wüstendörfer, Studies on the Modern Development of the Sea Freight Contract , 1905, p. 469
- ^ Duden editors, The large dictionary of the German language , 3rd edition, 1999, ISBN 3-411-04733-X .
- ^ Christian Friedrich Koch, General Land Law for the Prussian States , 1863, p. 481 f.
- ↑ Hans Jürgen Schaps / Georg Abraham (ed.), Seehandelsrecht (§ 474–905) , 1962, p. 12
- ↑ Walter Helmers, Frerich van Dieken (ed.): Müller-Krauss, manual for ship management . Volume 2, Shipping Law and Maneuvering, Part B, Shipping Law II. 9th edition. Springer Verlag, Berlin, Heidelberg, New York 1988, ISBN 3-540-17973-9 , pp. 104 ff .
- ↑ Hans Gramm , The new German sea freight law according to the Hague rules , 1938, note I 1a to § 559
- ↑ Lübeck Higher Appeal Court , Kierulff 5, 612
- ↑ top of Appeal Lübeck, HambS I, 739
- ↑ Hans Joachim Enge, Transport Insurance: Law and Practice in Germany and England , 1987, p. 229
- ↑ Walter Helmers, Frerich van Dieken (ed.): Müller-Krauss, manual for ship management . Volume 2, Shipping Law and Maneuvering, Part B, Shipping Law II. 9th edition. Springer Verlag, Berlin, Heidelberg, New York 1988, ISBN 3-540-17973-9 , pp. 198 ff .
- ↑ Rudolf Ludwig Decker- Verlag (ed.), Die Handelsgesetze des Erdballs , Volume 11, Part 1, 1909, p. 335
- ↑ being fit to travel is legally regarded as a partial requirement for seaworthiness
- ↑ Klaus Ramming, Major Commentary on Maritime Trade Law , Volume I, 2017, p. 16
