International Cargo Insurance
10
GERMAN LAW AND PRACTICE
GERMAN LAW AND PRACTICE
Joachim F. Bartels1LEGAL SOURCES
History
10.1 Marine cargo insurance in Germany is traditionally based on standard insurance conditions, which in olden times were established solely by the insurers or their agents, predominantly at the seaports of Hamburg and Bremen. Nowadays, insurance conditions are drafted and recommended for use by the cargo insurers’ association (Deutscher Transport-versicherer Verband, “DTV”) after consultation with the interested parties in the market. 10.2 The insurer’s conditions for Hamburg can be traced back to 1677. 2 By and large, attempts to reach conformity in the conditions to be applied did not succeed. In Bremen, for many years, Dutch policies were signed for marine insurance risks; in 1818, the Bremen insurers agreed on a general plan for their area and on 1 January 1854, the “Insurance Conditions of the Bremen Marine Underwriters” was introduced. In Northern Germany, except Bremen, the “Allgemeine Seeversicherungs-Bedingungen von 1867” (General Marine Insurance Conditions of 1867) applied as from 1 January 1868. For inland transport, insurers often continued to cover marine insurance risks on their own conditions. 10.3 Statutory rules for marine cargo insurance were issued in Germany for the first time by the General German Commercial Code (“ADHGB”), which was enacted as from 1861 - in the absence of a centralised German state - by most of the German individual states for their own area. In 1871, after the creation of the German Reich, this code became an Act of the Reich itself. In 1897, the ADHGB was replaced by the German Commercial Code (“HGB”). The stipulations on marine cargo insurance in the ADHGB remained almost entirely unaltered in sections 778 to 900 of the HGB. These provisions did not apply compulsorily. An “Insurance Contracts Act” (“Versicherungsvertragsgesetz” 3 ), dated 30 May 1908, came into force on 1 January 1910. It contained provisions for cargo insurance during land transport, but marine cargo insurance was expressly excluded (section 186 of the Insurance Contracts Act 1908). 10.4 The provisions for marine insurance in the HGB and the Insurance Contracts Act of 1908 induced insurers and other parties concerned to review the insurance conditions for marine insurance. This led to the “Allgemeine Deutsche Seeversicherungs-Bedingungen” (the ADS General Rules of Marine Insurance) of 1919, which have applied since 1 January 1920. These conditions contain general rules for all areas of marine insurance and special rules for hull insurance and for marine cargo insurance, respectively. Further rules concern the insurance of anticipated profit, loss of hire and special situations, as well as multimodal transports, the applicable law and the place of jurisdiction. 10.5 In 1947, the provisions for marine cargo insurance were supplemented by the “Zusatzbedingungen zu den ADS für die Güterversicherung (1947)” (Additional Clauses for Cargo Insurance (1947)) in order to adapt the special rules for cargo insurance in sections 80 to 99 of the ADS General Rules of Marine Insurance to new developments in the trade. However, these provisions were deemed insufficient and this led again to the application of various special conditions and individual clauses in the market. At the end of 1972, on the initiative of the DTV cargo insurers’ association, and in consultation and agreement with the interested trade associations, standard conditions for marine cargo insurance were finally developed, replacing sections 80 to 99 of the ADS General Rules of Marine Insurance and also the additional clauses of 1947. These conditions, named “ADS Güterversicherung 1973” (the ADS General Rules of Cargo Insurance 1973), were recommended for use by the insurers as from 1 January 1973. In addition to these, the general rules of the ADS General Rules of Marine Insurance remained applicable, to which clause 9.6.2 of the ADS General Rules of Cargo Insurance 1973 refers. In 1984 and 1994, respectively, these ADS cargo conditions were partly amended. 4 10.6 Since 2000, the ADS General Rules of Cargo Insurance have not been adapted to recent developments and/or updated by the DTV cargo insurers’ association. In their place, the “DTV-Güterversicherungsbedingungen 2000” (DTV-Cargo Insurance Clauses 2000) have been recommended for use by insurers. The present edition of these conditions is that of the year 2011. 5The DTV-Cargo Conditions
10.7
The DTV-Cargo Conditions are self-contained conditions for the insurance of cargo carried by any means of transport, which no longer refer to the ADS General Rules of Marine Insurance. As regards content, to a large extent they have taken over the rules of the ADS General Rules of Cargo Insurance 1973/84/94 and, in part, those of the ADS General Rules of Marine Insurance. Additionally, the provisions of the Insurance Contracts Act are applicable unless the insurance contract concerns the risks of transport exclusively by sea, in which respect the applicability of the Insurance Contracts Act is expressly excluded (sections 130 to 141 of the Insurance Contracts Act are not generally mandatory, the DTV-Cargo Conditions replace these when contractually agreed. 6