5 th International Recovery - PowerPoint Presentation

Slide1

5

thInternational Recovery Conference New York & Montreal June 2016

SeSu

Handling Cargo Claims in Germany

Thomas

Wanckel

Partner

Segelken & Suchopar,

Hamburg

&

Berlin

wanckel@sesu.de

”Practical Aspects of German Recovery Law”:

The Agenda

1. German Recovery Law

in a Nutshell

1.1. Overview of the German Rules Governing Cargo Claims

1.2. The revised German Maritime Code:

What’s new?

1.3. The Law on Multimodal Transports:

Liability in the network System & The Federal High Court Position

1.4. The “Forwarding Agent on Fixed Costs”

:

Take him as a Carrier!

2. The New German Law on the Arrest of Ships:

Makes

it easier!

3. Practical Aspects of Handling and Litigating

Cargo Claims in Germany

3.1. Jurisdiction and Arbitration Clauses:

All accepted

3.2. Commencing Legal Action:

Fast & Easy

3.3. Time &

Costs

More than reasonable

1.1.

Overview of the German Basic Rules Governing Cargo Claims

wanckel@sesu.de

1.1.

Overview of the German Basic Rules Governing Cargo Claims

wanckel@sesu.de

Domestic

Transports: Truck +

Railraod

+

Brownwater

4th Book of

the HGB =

Handelsgesetzbuch

(German Commercial Code)

1. General Principle:

Liability (for presumed fault) for damage and delay, while the goods are in the custody of the carrier.

Largely modelled

like

CMR!

2. Exclusions:

- Carrier exercised utmost care (high requirements!),

- Insufficient packing, inherent vice, insufficient labelling

3. Liability for:

- Loss, damage and delay,

no

consequential damage!

4. Limits of Liability:

- Damage/loss: Commercial value (at the time of loading), but max. 8,33 SDR/kg.

- Delay: 3 x freight

5. Breaking the Limit:

Intent of the

carrier or his

agents/servants

to cause such

damage – or if

the carrier or his agents

acted recklessly and

with knowledge

that damage would probably occur.

1.1.

Overview of the German Basic Rules Governing Cargo Claims

wanckel@sesu.de

Domestic Transports: Truck + Railroad +

Brownwater

!

4th Book of

the HGB =

Handelsgesetzbuch

(German Commercial Code)

6. Notice of claim:

- At the time of delivery, or within 7 days if not visible

- Otherwise sound delivery is presumed by law!

7. Time bar:

- 1 year as of the date of delivery. If the carrier acted intentionally or recklessly, 3 Years

-

Limitation period is suspended

-

by

a written claim

letter, email

& fax

-

and

by

settlement

negotiations

!

8. Modifications?

- Allowed, if negotiated in the individual case,

- Reduction to 2 SDR/kg by standard

terms

Note :

ADSp

2016

(

German Freight Forwarders’ Standard Terms and Conditions

) vs.

DTLB

(New Shippers’ Standard Conditions)

9. Performing/Actual

Carrier:

Joint and several liability with the contractual

carrier

1.1.

Overview of the German Basic Rules Governing Cargo Claims

wanckel@sesu.de

National and International

MaritimeTransports

:

E.

German (revised)

Maritime Cod

International law background:

Germany has

not

ratified the Visby-

Protocol, it is still a Hague-State

Germany has neither ratified the

Hamburg- nor the Rotterdam-Rules

However, Germany has incorporated

the Visby Protocol into its domestic

maritime law (so,

basically Germany is

a Hague/Visby-State

)

Completely revised with effect from 25 April 2013!

Error in navigation and Fire-Defence deleted!

1.1.

Overview of the German Basic Rules Governing Cargo Claims

wanckel@sesu.de

Overview:

Limitation of Liability

:

1.1.

Overview of the German Basic Rules Governing Cargo Claims

wanckel@sesu.de

Overview:

Time Bar

:

1.2.

The New German Maritime Code

wanckel@sesu.de

Basic Principles

(still Hague Visby!)

and

Recent Changes

#1

:

General Principle:

Legally presumed liability of the sea carrier,

but

he can escape liability by proving that damage could not have been avoided by applying the due diligence of a prudent carrier.

2. Exclusions:

- Perils of the sea, insufficient packing, inherent vice

-

Error in navigation

&

fire

only if this is contractually

agreed

(general business terms sufficient)

- Causation is legally presumed !!

Liability for:

Loss and damage,

plus survey fees !

No Liability

for delay & consequential damage !

But:

Liability for delay according to general civil law (which can partially be excluded by gen. bus. terms)

4. Limits of Liability: Damage/loss: Commercial value (at the agreed time and place of delivery), but max. 2 SDR/kg resp. 666,67 SDR per unit, depending on which is the higher.

1.2.

The New German Maritime Law

wanckel@sesu.de

Basic Principles and Recent Changes

#2

:

5. Breaking the Limit:

a) Personal fault :

Act or omission, done with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.

- required

fault of one of the members of the management board

(fault of agents or crew is not sufficient)

b) Deck-cargo:

If cargo was stowed on deck, contrary to the agreement of parties

6. Modifications?

Allowed, if negotiated and agreed

in the individual case

!

PS:

No exclusion of liability for damage occurring

outside the tackle-to-tackle period

by means of gen. bus. terms !!!

Notice of claim:

At the time of delivery; if damage is not visible: within 3 days, otherwise sound delivery is presumed!

1.2.

The New German Maritime Law

wanckel@sesu.de

Basic Principles and Recent Changes

#3

:

8. Time bar:

- 1 year as of the date of delivery

(no prescription)

- Limitation period is suspended by

(1) written claim letter (email/fax sufficient) until its rejection (2)

and/or

settlement negotiations

! Prevails over t/e!

New:

9. Performing Carrier:

The actual carrier (the “last” in the chain - may be the ship owner or a terminal operator) is liable in

joint and several liability

, provided the main contract is subject to German law

Reference to C/P? This is actually

a unique approach of German law

:

Any reference made in a B/L to the terms of a CP is considered to be void. Only those clauses are valid which are printed on the B/L itself !!

Consequence

: double jurisdiction?

1.3.

The Law on Multimodal Transports

wanckel@sesu.de

The German Law on Multimodal Transports :

Definition:

Uniform contract covering different legs of transport & involving different means of transport that would each come under different legal regimes.

General Rule:

- if place of damage is known, those rules apply which would cover the respective leg of

transport!

New: German Federal Court Doctrine!

- if place of damage is

not

know, German HGB applies!

Advantages:

- Liable for the entire transport-chain! No difficulties as regards allocation of liabilities

e.g.

at terminals

- Limitation of liability basically at 8.33 SDR according

to HGB

Potential Problems:

Damage on Terminal !

Where

does the sea-leg start, where is it terminated?

1.4.

The “Forwarding Agent on Fixed Costs”

wanckel@sesu.de

The German “

Fixkostenspediteur

”:

General rule:

- The forwarding agent is obliged only to arrange for the dispatch of the goods;

- Liable only for a failure to choose a diligent carrier

But:

-

Liable as a carrier

if

contract

on fixed freight

terms!

-

approx.

99%

of all contracts

Advantages:

- Liability covers the entire transport chain !!

- If place of damage unknown (law on multimodal transports applies), liable under the HGB

(8,33 SDR/kg)

Potential Problems:

Damage on Terminal !

Where

does the sea-leg start, where is it terminated?

2.

The New German Law on the Arrest of Ships

wanckel@sesu.de

The

Purpose

of Ship Arrests:

Obtaining Financial Security

Creating Pressure to Settling Claims

Creating Inland Jurisdiction

The Legal

Prerequisites

in Germany:

The Claim: - Any claim for payment

- Against Owners or Bareboat Charterers

The Ship: - Any ship of the debtor (inclusive sister ships)

New: No “Good Reason” required anymore !! (Major change !!!!)

Required Evidence: Affidavit !!

2.

The New German Law on the Arrest of Ships

wanckel@sesu.de

Security:

Counter-security may be required by the judge – subject to

his discretion

Note:

Wrongful

Arrest:

German Law stipulates a strict liability for wrongful

arrests if an

arrest was unjustified from the very

beginning;

however,

carriers’ duty to mitigate damages!

Costs:

The Court fees’ are calculated on a fixed schedule

The Applicant has to bear the costs for the maintenance of the ship while it is arrested

3.

Practical Aspects of Handling and Litigating Cargo Claims in Germany

wanckel@sesu.de

3.1.

Jurisdiction and Arbitration Clauses

:

HGB:

Valid, unless a consumer is involved or if it is against the law, i.e. against the mandatory provisions of the CMR

Maritime Law:

Valid

provided

it directs to a jurisdiction

with

a standard

not less than the

Hague-Rules

New:

Reference in a B/L to

a jurisdiction

clause in CP,

not valid

!

Not valid:

Jurisdiction clause allowing the carrier to start

in his discretion

proceedings either before the ordinary courts or before an arbitration panel

Arbitration:

T

he

most

common arbitration clause = GMAA-Arbitration Advantages: Less formalities and privacy Be

Aware

:

No appeal

!

3.

Practical Aspects of Handling and Litigating Cargo Claims in Germany

wanckel@sesu.de

3.2.

Prepare yourself! German law is strict on:

Who is the right claimant?

- Co-insurers?

- Proof of subrogation (German law:

cessio

leges) or of an assignment of rights; implied assignment by handing over the claim docs to the insurer

Who is the right defendant?

- Proof of contractual relationship

by means of

b/l

or booking notes, etc.

-

IoC

-Clause (Identity of the

Carrier)

not

valid under German

law,

-

no

„

bundle

“ of

defendants

!

3.

Practical Aspects of Handling and Litigating Cargo Claims in Germany

wanckel@sesu.de

3.3.

Time & Costs

An action may be started on short

notice (2

hrs

!), however,

requiring complete information

(right claimant/defendant)

.

Court fees to be paid soon after filing an action in order to save the time bar!

Court fees calculated according to a fixed schedule.

For an action of € 100,000.00, € 2.000,00 to be prepaid. 2/3 to be refunded if claim is withdrawn before a hearing or in case of a settlement.

Attorneys‘ fees also calculated according to a fixed schedule, generally „no cure-no pay“ not permitted!

For an action of € 100.000,00 about € 5.000,00.

Pls

note:

The winner is entitled to recover his fees = those of the schedule.

3.

Practical Aspects of Handling and Litigating Cargo Claims in Germany

wanckel@sesu.de

3.3.

Time & Costs:

When

you

are

at

Court,

the

Start

!

The Hamburg Court

(1

judge

, 2

commercial

women

/

men

)

File a

suit

,

Defendants

6

weeks

to respond,Your reply within 4 weeks,The first hearing: 3-4 months, Judgement within a year.

3.

Practical Aspects of Handling and Litigating Cargo Claims in Germany

wanckel@sesu.de

3.3.

Time & Costs:

When

you

are

at

Court,

the

Appeal

!!

The Hamburg Appeal Court,

(

panel

of

3

judges

)

Time-

limit

for

an

appeal

: 1

month

Arguments to be lodged: another month,Appeal dismissed by order, or hearing, within 4-6 months,Appeal judgement after 12 months, Fed. High Court Judgement 3-4 years.

Summary:

8 Good Reasons for Recovery in Germany:

wanckel@sesu.de

1. You

may go after the “Fixkostenspediteur”

in Germany

.

2. Error

in navigation and fire defence is excluded from the “new”

German

Maritime Code.

3. No

exclusion for liability during the tackle-to-tackle

period

by means of

general business terms

.

4. The

IoC-Clause is not valid

!

5. Full recovery if carrier or his servants s acts with intend

or

recklessly with knowledge that damage will probably occur! (different under the Maritime Code!)

6. If

settlement negotiations fail, you may start proceedings easily

.

7. You

may expect not only a fair and speedy trial but also at very

reasonable

costs

.

8. No

“Good Reason”

anymore

required for an arrest.

wanckel@sesu.de

..

any

questions

?

Many

thanks

!

wanckel@sesu.de