Introduction
The carriage of goods by sea is the globally preferred method of international cargo transportation.[1] When a buyer and a seller agree on a contract for the sale of goods, they must set all conditions of purchase, including the transport of such goods by land, air or sea. Maritime transport documents (primarily charterparties and bills of lading (B/L)) are relatively complex and the uncertainty concerning dispute resolution clauses deserves particular attention.
This book focuses on cargo claims related to the damage, loss, misdelivery or delay of merchandise during a sea venture. It sheds light on especially problematic scenarios, in which parties to the carriage contract might not be able to resolve their disputes, and examines the interface between party autonomy and dispute resolution clauses in B/Ls and charterparties in the context of restrictions imposed by different legal regimes in relation to procedure, substantive law and choice of law.
Private international law (PIL), or conflict of laws, shows that the law of treaties is not sufficient to solve the complex problems posed by the plurality of international, European and national sources that affect this subject. The global regulatory unbundling process has diminished the role that international conventions play in normative unification. Their coexistence with more flexible instruments (‘soft laws’, reflecting both private and public interests and using normative principles and models) ensures that trade usages and practices are suited to the complex modern reality of the shipping sector.
The issues in this book are considered within the framework of European Union (EU), English and Spanish law. Of these, English law is by far the dominant force, internationally, but even a limited consideration of Spanish law, as a civil law system, provides a different perspective and perhaps a different approach for the future. Maritime law is subject to international regulation, and the EU also has a significant role to play, particularly with regard to jurisdiction clauses. Excessive regulation does not protect shipping operators, as partial and sectoral regulatory harmonisation lacks sufficient legal certainty and predictability.[2] Attempts to solve the problems of party autonomy result in failure or ambiguity, as demonstrated by the Hamburg and Rotterdam Rules. Such rules cannot adapt to the reality of the shipping industry and are not adequate instruments of international codification.
Limits on party autonomy are not only an English, Spanish or European problem. Parties may not be able to resolve their disputes under the terms of the contracts for the carriage of goods by sea, leading to problems that vary from case to case, despite the harmonisation and delimitation efforts of PIL and public maritime law.s The complexity in securing recognition of the seat chosen by the contracting parties points to the use of preventive advocacy, i.e., the avoidance of future disputes through legal advice.
Due to the nature of the industry, there are difficulties hi setting out the legal regime under which the parties may enforce agreed jurisdiction or arbitration agreements. International instruments such as the Hague, Hague-Visby and Hamburg Rules - as well as the still-not-in-force Rotterdam Rules - provide a liability regime for cargo claims. Some of these rules affect the validity of dispute resolution clauses along with EU law and the domestic legal regimes of England and Spain. Issues arising out of the incorporation of the charterparty terms (including the dispute resolution clause) into the B/L ar e proof of the limitations on party autonomy, depending on the applicable legal regime, the court or arbitral tribunal and the particular ities of the case.
The international nature of shipping law reflects the coexistence of a differentiated hierarchy of regulatory frameworks at national, EU and international level. When an EU Member State court confirms its jurisdiction and the applicability of harmonised EU law over a (cargo) claim, such Member State court ‘imposes’ on non-EU countries European procedural and substantive legal standards. It implies that the same rules apply to trans-border conflicts between EU Member States and trans-border conflicts between Member States and non-EU states, with an overall shift away from substance to procedure in the external dimension of European private law.
This work seeks to untangle the issues at hand: the limits on party autonomy regarding dispute resolution clauses inserted into a charterparty or incorporated into a B/L by the shipowner and/or the charterer.
- [1] In 2013, the European Union (EU) shipping industry directly contributed €56 billion to EU GDP and 615,000 employees, while the indirect impact was €61 billion to EU GDP and 1.1 nullion jobs. The total econonuc impact is estunated to have been €147 billion during 2013; Oxford Economics, The Economic Value of the EU Shipping Industry: A Report for the European Comm unity Shipowners 'Associations (report, April 2014); Jonatan Echebama Fernández, ‘Action Research and Efficient Maritime Transport Contract Negotiation’ in Peter Amt Nielsen, Peter Koerver Schmidt, Katja Dyppel Weber (eds), Erhvervsretlige Emner: JurisdikInstituí CBS (DJ0F 2015) 49-63. 2 Felix Spai'ka, Jurisdiction and Arbitration Clauses in Maritime Transport Documents (Springer 2010) 19-38. 3 There is a trend in the literature to move towards international nonnative uniformity in mantime law. Tulho Treves, Il nuovo diritto del mare e le convenzioni internazionali sulla protezione dell'ambiente marino (1999) 101(1) DirMarit 219; Sergio Maria Carbone and Francesco Munari, Regale e organizzazione dei trasporti marit-timi internazionali (Giuffré 1990) 7-10. 4 For the inadequacies of multilateral treaties for international codification and the European evolution of PIL, see Juan Carlos Fernández Rozas, 'La ordenación de las relaciones privadas internacionales a través de tratados en las postnmerías de su ciclo histórico’ in Santiago Torres Bernárdez (ed), El derecho internacional en el mundo multipolar del siglo XXI: obra homenaje al profesor Luis Ignacion Sánchez Rodríguez (Iprolex 2013) 54. 5 Juan José Álvarez Rubio, La dimensión procesal internacional en la Ley de navegación marítima (2014-2015) 14-15 Anuario Español de Derecho Internacional Privado 159; see also Juan José Álvarez Rubio, Derecho Marítimo y Derecho Internacional Privado: Algunos Problemas Básicos (Servicio de Publicaciones Gobierno Vasco 2000) 19-42.
- [2] Álvarez Rubio, Derecho Marítimo y Derecho Internacional Privado (n 5) 19-42. 2 United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (‘Rotterdam Rules’) adopted in New York on 11 December 2008, A/RES/63/122. 3 Giulio Diena, Principes du Droit International Prive Maritime: Recueil des Cours, vol 51, (Martinus Nijhoff 1935) 405 etseq. 4 International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading (‘The Hague Rules’) (adopted 25 August 1924) 51 Stat 223,120 LNTS 155. 5 Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relatmg to Bills of Lading (‘The Visby Rules’) (adopted 23 February 1968) 1412 UNTS 121. 6 United Nations Convention on the Carriage of Goods by Sea (‘The Hamburg Rules’) (approved 30 March 1978, entered into force 1 November 1992) 1695 UNTS 3. 7 See the EU law projection on the maritime tiansport m Francesco Munari, Il diritto comunitario dei trasporti (Giuffre 1996) 50-117. 8 See José Carlos Fernández Rozas, ‘Comunitarización del Derecho mtemacional privado y Derecho aplicable a las obligaciones contractuales’ (2009) 140 Revista Española de Seguros 595. 9 Hans-Wolfgang Micklitz, ‘The internal vs. the external dimension of European private law - a conceptual design and a research agenda’ (2015) EUI Working Paper LAW 2015/35, ERC-ERPL Project, 4,13.
