Ocean freight contract

from Wikipedia, the free encyclopedia

The sea freight contract is maritime trade a contract of carriage between charterers and shippers on the transport of cargo to an overseas destination charge of cargo .

General

The sea freight contract relates to sea ​​shipping , whereby it is intended exclusively for sea freight and not for passenger transport . Is to distinguish between the charter agreement over an entire vessel , a portion thereof or a particular designated ship space ( English slot ), the air rate contract and the time charter . While the general charter carries out the transport at a certain point in time, the time charter is intended for a longer period of time during which the chartered ships can be used multiple times.

Parties involved in the sea freight contract are the shipper ( exporter ) or his appointed shipper , the shipper and the receiver ( importer ). The carrier accepts the freight for transport on a merchant ship and undertakes to deliver it to the recipient.

history

Main trade routes of the Spanish and Portuguese colonial empires
Dutch three-master in front of Kronborg Castle in Denmark, the collection point for the sound tariff

The origin of the sea freight contract is closely linked to merchant shipping , because most merchant ships are not operated by the traders themselves, but by shipowners who are not directly involved in the trade of goods . Since the content of a freight contract is reproduced in abbreviated form in the consignment note , the first freight contracts existed for land transport and inland waterway transport before they were introduced in rail , air and finally also in sea transport. A first forerunner of the charter game appeared in Italy in 236 AD . It was a split document ( Italian carta partita ), a double document cut in zigzag, of which the charterer and carrier each received a part. Only when someone was able to present the assembled document did they have the right to dispose of the freight. The Rhodian maritime law also knew the forerunner of the charter game from 600.

The Rhodian law of the sea ( Latin lex Rhodia ) of Rhodes was considered the first and most comprehensive law of the sea. According to the historian Strabo (about 63 BC - after 23 AD), Rhodes was famous for its legal order and maritime affairs. Isidore of Seville spoke after 560 AD that there were Rhodian laws governing maritime trade. It contained, among other things, regulations on the average and even on ship mortgages . The first evidence of the Rhodian law of the sea can be found in the digests of the Roman Corpus Iuris Civilis . The freight contract was a consensual contract within the framework of service and work contract law ( Latin locatio conductio ), which was also applicable to the ocean freight contract. In the event of a dispute, the shipper disadvantaged by the sea ​​litter ( Latin locator ) sued the carrier ( Latin conductor ) for claiming the damage owed ( Latin contributio ) from the beneficiary shipper . This is where the Romans probably took over in the 1st century BC. BC the Rhodian law of the sea in its Roman law also the "great Haverei" ( Latin Lex Rhodia de iactu ), which the lawyer Lucius Volusius Maecianus wrote. According to the digests of late antiquity , Ulpian praised the benefits of shipping contracts and described the liability of shipowners and boatmen.

In the Middle Ages , between 1160 and 1286, the Rôles d'Oléron were created , which today are considered to be the oldest written record of the law of the sea. They described the common law at sea, the commercial practices of maritime trade and included a catalog of Bußbestimmungen for offenders. The law of the sea of ​​Wisby ( Swedish Waterrecht tho Wisby ) appeared probably after 1350 and contained a part from Lübeck's statutes and also the Rôles d'Oléron. The old Hanseatic Maritime Law was created in 1591 and revised in 1614.

In England, a petition to Queen Elizabeth I asked for permission to sail in the Indian Ocean. With this permission, three ships sailed from England around the Cape of Good Hope in the Arabian Sea in 1591 . The British East India Company , founded in December 1600, organized the intensified trade with India. As early as March 1602, the Dutch East India Company was founded , which specialized in maritime trade with Southeast Asia. Both unified - each for itself - the maritime trade law.

The General Prussian Land Law (APL) of June 1794 also included sea trade. According to II 8, § 1658 APL, the shipper had to be issued a "receipt, or so-called connoissement ". The ADHGB of May 1861 regulated the sea freight contract in Art. 557 ff. ADHGB, whereby it already differentiated between room and general cargo contract ( "charter part" , Art. 558 ADHGB). Art. 607 ADHGB stipulated that the carrier was not liable for force majeure at sea. According to Art. 480 ADHGB and Art. 481 ADHGB, the carrier ("skipper") had to ensure that the ship was seaworthy and / or loaded . In accordance with Art. 624 ADHGB, the carrier was entitled to a statutory lien on the freight due to unpaid freight. The bill of lading is regulated by Art. 645 ff. ADHGB. In 1864 the York Antwerp Rules (YAP) were written in York , which were drawn up in Antwerp by 1877 and published in 1890 with the recommendation that they should be used as a basis for all sea freight contracts. They concern the insurance of large average accidents and distribute the damage to the ship and cargo. Since the early 20th century scientists have been concerned with sea freight contracts, for example in 1905 with seaworthiness.

The provisions of the ADHGB were adopted almost word for word by the HGB in January 1900. The sea freight contract referred to the entire ship or a part of it or to individual goods ("piece goods"; § 557 HGB old version), for which a charter lot was to be issued.

Legal issues

General commercial law and the German Civil Code (BGB) are not completely superseded by maritime trade law, but apply subsidiary. A general regulation of the BGB or commercial law therefore only applies if the maritime trade law ( lex specialis ) does not contain any more specific regulation.

The sea freight contract is a special case of the work contract . Involved in a sea freight contract are the exporter as a shipper ( English shipper ), the ocean carriers as a carrier ( English carrier ) and the importer and receiver ( English consignee ). The sea freight contract is a real contract in favor of a third party , namely the recipient of the freight, who is not directly involved in the conclusion of the contract.

The German maritime trade law of the HGB carried out an international legal adjustment in April 2013, which also extended to the sea freight contract. The general cargo contract obliges the carrier in accordance with Section 481 (1) and (2) of the German Commercial Code (HGB) to transport the cargo by sea to the destination and deliver it to the recipient there, while the carrier has to pay for the cargo. Before handing over the freight, the freight forwarder must provide the freight forwarder with the information on the goods required to carry out the transport, in particular in text form information on dimensions, number or weight, as well as features and the type of goods ( Section 482 (1) HGB).

According to Section 483 of the German Commercial Code (HGB), the carrier must ensure that the ship is seaworthy , i.e. properly furnished, equipped, manned and provided with sufficient supplies. In addition, the holds, including the refrigeration and freezing rooms, as well as all other parts of the ship must be in the condition required for the reception, transport and maintenance of the goods ( suitability for cargo ). After the freight has arrived at the discharge point , the recipient is entitled to demand that the carrier deliver the goods to him in return for the fulfillment of the obligations under the general cargo contract ( Section 494 (1) HGB). In accordance with Section 495 (1) of the German Commercial Code (HGB), the carrier has a statutory right of lien on the freight forwarded to him for carriage for all claims arising from the general cargo contract .

According to Section 513 (1) of the German Commercial Code (HGB), the freight broker or unloader has the right to have a bill of lading issued . Apart from the bill of lading, the sea ​​freight documents are the sea ​​waybill and the charter lot . They are securities (bill of lading), accompanying documents and unloading confirmation (sea waybill , charter lot) and blocking paper (bill of lading, sea waybill).

The "general average" is regulated in § § 588 ff. HGB, whereby the York Antwerp Rules (YAP) are taken into account in the sea freight contract.

Special regulations

In the international grain trade, contracts are mainly concluded according to the GAFTA rules ; the Financial Express , according to 80 percent of are world trade with grain and a substantial portion of the feed with GAFTA conditions traded. Oils, oil seeds and fats are often traded according to the FOSFA contracts.

See also

literature

  • Beate Czerwenka: The law to reform maritime trade law: introduction - explanations - synopsis - materials . Bundesanzeiger Verlag, October 2013, ISBN 978-3898179676
  • Dieter Rabe, Kay-Uwe Bahnsen: Maritime Trade Law. Commercial Code and ancillary laws. Commentary , 5th edition, Munich 2017, Verlag CH Beck

Web links

Individual evidence

  1. ↑ Philipp Egler, Maritime Private Law Disputes under the EuGVVO , 2011, p. 16
  2. ↑ Florian Gehrke, The electronic transport document , 2005, p. 3
  3. ^ Patrick M. Alderton, Reeds Sea Transport: Operation and Economics , 2011, p. 176
  4. ^ William Tetley, International Encyclopedia of Comparative Law , Installation 12: Maritime Transportation , 1981, p. 33
  5. ↑ Strabo, 14, 2, 4
  6. ^ Isidore of Seville, Origines , 5:17
  7. ^ Andreas Maurer, Lex Maritima: Fundamentals of a transnational maritime trade law , 2012, p. 8
  8. ↑ Christoph Krampe: Roman law on the high seas . In: Iole Fargnoli , Stefan Rebenich (ed.): The legacy of the Romans: Roman law and Europe . Haupt Verlag, Bern 2012, ISBN 978-3-258-07751-2 , pp. 111–150 , p. 123 ( reading excerpt [accessed July 12, 2019]).
  9. ↑ Ulpian , Digesten , 14, 1.
  10. ^ Karl von Kaltenborn, Principles of the practical European law of the sea, especially in private traffic , 1851, p. 21
  11. ^ Karl von Kaltenborn , Principles of the practical European law of the sea, especially in private traffic , 1851, p. 27
  12. ^ Imperial Gazetteer of India, Volume II, 1908, p. 454
  13. ↑ General Land Law for the Prussian States, Volume 3, 1794, p. 594
  14. ^ William Lewis, The German Law of the Sea: A Commentary on the V Book of the ADHGB , Volume 1, 1877, p. 182
  15. ↑ General Land Law for the Prussian States, 1863, p. 529 ff.
  16. ↑ Hans Wüstendörfer, Studies on the Modern Development of the Sea Freight Contract , 1905, p. 469
  17. ↑ Here the freight broker is the sender from the sea waybill
  18. ↑ Clemens Büter, Foreign Trade: Basics of global and intra-community trade relations, 2010, p. 252
  19. ↑ Rolf Herber, Maritime Trade Law: Systematic Presentation , 2016, p. 18
  20. ↑ Philipp Egler, Maritime Private Law Disputes under the EuGVVO , 2011, p. 58
  21. ^ Financial Express of November 17, 2003, Changes In Contract Rules To Affect GAFTA members