Dangers of the sea
Dangers of the sea (also: Seegefahren ; English perils of the sea ) are extraordinary dangers in maritime shipping that occur to a ship , the ship's crew , passengers or the ocean freight during the voyage and can lead to ship accidents including average .
General
The main purpose of seagoing vessels is to conduct seafaring and to survive sea hazards. Above all, this includes the risk of collision , sea water , stranding , storms , rough seas , bad weather , nautical fault or icebergs . A nautical fault is understood to mean misconduct in the management or other operation of the ship. Unusual dangers such as damage to the cargo by rats or vermin, on the other hand, are not a marine hazard. Even naval war or blockade economically not typical Seegefahren. The sea hazards can lead to personal injury and / or property damage .
history
The French sea guide ( French Guidon de la mer ) can be dated to the time between 1556 and 1584 and contained in particular the sea contracts and the marine insurance. It stipulated that any loss or damage that arises from the nature of the goods without storms or other marine hazards was to be borne by the owner and not by the insurer (Chapter V, Article 8). The General Prussian Land Law (APL) of June 1794, on the other hand, permitted the insurance of goods against maritime hazards (II 8, § 2046 APL). The sea hazard began as soon as the sea freight got on board the ship (II 8, § 2184 APL), it ended when the freight landed at the destination (II 8, § 2185 APL). The main duty of the insurer was to reimburse the damage that the insured item had suffered when the risk assumed (II 8, § 2171 APL).
The French Commercial Code ( French Code de Commerce ) of September 1807 transferred the actual marine dangers of storms and thunderstorms , shipwreck , stranding or littering (Art. 350) to the insurer . In the case of the Großaventurei and the Bodmerei , the creditor had to bear the sea risk to the extent that he would lose his claims in the event of an average . Sea hazards therefore initially extended to damage or loss of the ship, the ship's crew and / or its cargo. Consequential damage was also the financial damage that hit the shipowner , charterer , carrier or lender .
Lloyd's of London was created in May 1871 by a special law as a single company and is today the most important marine insurance worldwide. Above all, it insures marine hazards. In January 1907, the British took Seeversicherungsgesetz ( English Maritime Insurance Act ) came into force. According to this , only damage that can be traced back to sea hazards ( English Maritime perils ) and which is not expressly excluded in the sea freight insurance conditions ( English Institute Cargo Clauses , ICC) is insured . The German Maritime Insurance Conditions (ADS), which are comparable with these, have been in force since July 1920.
Legal issues
The ship and its accessories , the ship's crew, passengers and cargo are subject to marine hazard . The sea hazard must be a situation against which the carrier is unable to protect himself, even if the required care is exercised. According to this, it must be a dangerous situation that exceeds the usual side effects of sea transport. The effects of the marine hazard must have been so serious that the carrier could not take effective precautions to protect the cargo, even if the occurrence of the marine hazard was not unforeseeable. Winds from 8 to 9 Beaufort in the Bay of Biscay at the end of January do not justify the objection of the danger of the sea. There is a maritime danger if it does not concern situations that are normally to be expected on a certain voyage according to route and season, which a seaworthy ship must be able to cope with and for which precautions must be taken to preserve it, also through proper stowage of the cargo so that in this sense it does not have to be an unusual, but in any case unforeseen sea hazard under the specific circumstances. It is about the entirety of the circumstances that caused the damage.
The maritime trade law , which has been in force since April 2013, prescribes general liability on the part of the carrier in Section 498 (1) of the German Commercial Code ( HGB) for damage caused by loss of or damage to the freight in the period from acceptance for transport at the loading point to delivery at the discharge point . However, according to Section 498 (2) HGB, the carrier is exempt from liability if the loss or damage is due to circumstances that could not have been averted with the care of a proper carrier. If the skipper sees a bad weather zone, the exclusion of liability cannot be objected. In unseaworthiness or Ladungsuntüchtigkeit he is liable only if they were not to be discovered despite care. The general limitation of liability of the carrier now results from Section 499 (1) HGB. According to this, the carrier is not liable if the loss or damage is due to hazards or accidents in the sea and other navigable waters, warlike events , riots , acts of public enemies or orders from high authorities as well as quarantine restrictions , judicial confiscation , strikes , lockouts or other work impediments, acts or omissions on the part of the freight forwarder or shipper , in particular inadequate packaging or inadequate labeling of the freight items by the shipper or shipper, the natural type or quality of the goods that are particularly easy to damage, in particular through breakage, rust, internal spoilage, drying out, leakage, normal shrinkage in terms of volume or weight, leads, the transport of live animals, measures to rescue people in sea waters and rescue measures in sea waters.
insurance
Sea dangers that can be insured today are primarily barattery , confiscation , theft , fire , major average , privateer , mutiny , pinches , shipwreck , sea blockade , piracy , throwing the sea , stranding or water ingress . The specific scope of insurance results from the policy . Is force majeure is present, deposits a liability in case of damage usually made because none of the parties a fault is to blame. The conceptual features of force majeure also include non-fault, so that the person who claims force majeure must inevitably also show his non-fault.
There is also maritime insurance law as a special area. Maritime insurance is part of transport insurance , but according to Section 209 VVG, the VVG regulations on insurance against the dangers of shipping (marine insurance) are not applicable. Pursuant to Section 28 ADS, the insurer bears all risks to which the ship or the goods are exposed during the term of the insurance, in particular in the case of dangers that may arise during transport by sea (marine hazards).
International
Because of the global awareness of the ICC, it is common in international trade to agree on the application of the ICC. The sea hazard ( French dangers sur la mer ) is not specifically mentioned in French law, but is included in Art. 27 Code de la navigation maritime among the events mentioned there that are not attributable to the carrier. In Italy , in the event of a sea hazard ( Italian pericolo del mare, fortuna di mare ), according to Art. 422 Codice della Navigazione, the carrier is only liable for the loss of or damage to the goods handed over to him for transport if he is to blame. The freight forwarder must prove that the cause of the loss, failure or delay was caused by the fault of the carrier or the economic fault of his employees and superiors . In England , the dangers of the sea relate ( English perils of the sea ) the common law , according solely to random and unpredictable events that come from the sea and captured not the normal action of wind and waves . This definition, which is still valid today, comes from a court decision in 1887 in the Xantho case.
literature
- J. Bes: Chartering and Shipping Terms: Manual for trampoline and liner shipping . 2nd Edition. Uitgeverij C. De Boer Jr., Hilversum 1968.
Individual evidence
- ↑ Victoria Athanassopoulou, Ship Company and Ship Lease Agreements , 2005, p. 58
- ↑ Hans Jürgen Schaps / Georg Abraham (ed.), Maritime Trade Law: § 474–905 HGB , 1962, p. 469
- ↑ General Land Law for the Prussian States , Volume 3, 1794, p. 642
- ↑ Arthur Curti, England's Private and Commercial Law - Volume Two: Commercial Law , 1927, p. 185
- ↑ OLG Hamburg, judgment of August 4, 2000, Az .: 6 U 184/98, TranspR 2001, 38 ff.
- ^ LG Bremen, judgment of November 27, 1998, Az .: 11 O 155/98, TranspR 1999, 211 f.
- ^ Arthur Curti, England's Private and Commercial Law - Volume Two: Commercial Law , 1927, p. 188
- ^ Karlheinz Müssig / Josef Löffelholz (eds.), Bank-Lexikon: Concise dictionary for money, banking and stock exchange , 1998, Sp. 1110 f.
- ^ Ordonnance-loi n ° 66-98 of March 14, 1966
- ↑ Georg Schaps, Maritime Trade Law , 1978, p. 920
- ↑ Thomas Wilson Sons & Co. vs. Owners of the Cargo of The Xantho , 1887, 12 App Cas 503, 503
