The Hamburg Rules
Jurisdiction under the Hamburg Rules
Article 21(1) of the Hamburg Rules provides for jurisdiction:
In judicial proceedings relating to carriage of goods under this Convention the plaintiff, at his option, may institute an action in a court which, according to the law of the State where the court is situated, is competent and within the jurisdiction of which is situated one of the following places:
- (a) The principal place of business or, in the absence thereof, the habitual residence of the defendant; or
- (b) The place where the contract was made provided that the defendant has there a place of business, branch or agency through which the contract was made; or
- (c) The port of loading or the port of discharge; or
- (d) Any additional place designated for that purpose in the contract of carriage by sea.
According to Article 21(2), a claim can be filed in a contracting state where a vessel is arrested, although the defendant has the right to remove the action to a jurisdiction provided in Article 21(1) after furnishing ‘security sufficient to ensure payment of any judgment that may subsequently be awarded to the claimant in the action’. It is expressly provided by Article 21(3) that no action may be brought except in one of the places specified in Article 21(1) and (2) for provisional or protective measures, such as the arrest of the ship, unless a court of a Contracting State has jurisdiction. Article 21(5) states that a jurisdiction agreement made after the claim has arisen is valid.
Jackson suggests that the regime set out in the Hamburg Rules provides a jurisdictional framework with the purpose of displacing the one contained in the Hague-Visby Rules. Article 21(4) limits the Its alibi pendens by not allowing the cargo interests to start multiple claims based on the same grounds. However, any measures seeking enforcement of a judgment are not considered to start a new action; neither ‘the removal of an action to a different court within the same country, [n]or to a court in another country' in accordance with Article 21(2).[1]
Baatz points out that, in relation to court jurisdiction clauses, the CJEU in Castelletti™ held that the original parties in a B/L contract (which applied the Brussels Convention) could choose a neutral forum. There is no requirement for any link between the relationship in dispute and the chosen court. But where any EU Member State has ratified and incorporated the Hamburg Rules into its domestic law, the provisions of those Rules that contain provisions in respect of jurisdiction or the recognition or enforcement of judgments and entered into force before the Brussels I Regulation (recast) could override the parties’ choice of court as a result of applying Article 71 of the Regulation, giving them priority over the Regulation, ‘if it conflicts’, but probably not under the Hague-Visby Rules (see Section 3.1 of this chapter). The Hague Rules and Hague-Visby Rules do not address jurisdiction and arbitration agreements and instead the provisions of the Brussels I Regulation (recast) or the New York Convention are likely to apply. Article 21 of the Hamburg Rules provides a cargo claimant with a choice of a number of different forums, thereby reducing the effect of a jurisdiction clause. Only a few EU Member States have ratified the Hamburg Rules (Austria, Czech Republic, Hungaiy and Romania), but some countries that have not ratified it have chosen to incorporate the jurisdictional provisions of the Hamburg Rules into their national law.
The parties may elect to apply the Hamburg Rules by way of an agreement evidenced in writing that any dispute that may arise relating to the carriage of goods shall be referred to arbitration as per Article 22(1) of the Hamburg Rules. Problems arise when the cargo claimant can choose from a set of different forums linked to the carriage of goods and the venue chosen, reducing party choice to a mere option while restricting the effect of exclusive court or arbitration agreements.
Multimodal transport increases the number of potential locations related to the claim: cargo interests can obtain security by arresting the carrier’s ship and enforce an arbitration award afterwards. However, in practice, the cargo interests’ subrogated insurers usually sue the carrier, making further consumer protection unnecessary in such situations.
Arbitration under the Hamburg Rules
The Hamburg Rules contain a specific response to the validity of arbitration clauses that are omitted from a B/L issued under a charterparty that lacks any express statement requiring the mandatoiy application of the clause to the B/L holder.[2] Assistance, salvage and ship construction contracts also fall under its scope, but the Rules exclude environmental protection and marine environment cases. The binding effect of arbitration clauses on B/L holders has to be distinguished, depending on whether the arbitration clause is printed on or inserted into a B/L or is incorporated by reference into a B/L from a charterparty.
According to Article 22(3), which mirrors the jurisdiction provisions in Article 21(1), the Hamburg Rules require arbitrations to be instituted in the state in which is located:
- (i) The principal place of business of the defendant or, in the absence thereof, the habitual residence of the defendant;
- (ii) The place where the contract was made, provided that the defendant has there a place of business, branch or agency through which the contract was made; or
- (iii) The port of loading or the port of discharge.
Arbitration can also be held at any place designated for that purpose in the arbitration clause or agreement.
Article 22(2) of the Hamburg Rules states that where an arbitration clause in a charter-party is not incorporated expressly on the face of a B/L, the carrier may not invoke such provision against a B/L holder who has acquired the B/L in good faith. Bearing this rule in mind, the only way to maintain the validity of an arbitration clause in these cases is to distinguish between contracts where the clause is included and the document is related to the main contract. Some authors suggest that if the B/L contains an express reference to a clause of the charterparty, such as its arbitration clause, that arbitration clause could be deemed valid while maintaining contractual distance between the B/L and the underlying charterparty.
- [1] DC Jackson, Enforcement of Maritime Claims (4tli edn, Infonna 2013) ch 6. 2 Yvonne Baatz, ‘Should Third Parties Be Bound by Arbitration Clauses in Bills of Lading?’ (2015) 1 LMCLQ 85. 3 CaseC-159/97 TrasportiCastelletti Spedizioni Intemazionali SpA v. Hugo TrumpySpA EU:C: 1999:142, [1999] ECR1-1597. 4 International Conventions that entered into force before the Brussels I Regulation (recast) include the 1952 Arrest Convention, the 1999 Arrest Convention, the International Convention on Certain Rules Concerning Civil Jurisdiction in Mattei's of Collision 1952 and the Hamburg Rules; Yvonne Baatz, ‘Jurisdiction and Arbitration m Multimodal Transport’ (2011) 36 Tul Mai' LJ 643. 5 Ukraine did not sign nor ratify the Hamburg Rules (
- [2] Rosario Espinosa Calabuig, ‘Las cláusulas arbitrales marítimas a la luz de los usos del tráfico internacional’ (2007) 13 Revista electrónica de estudios internacionales 2,15. 2 These are covered by exclusive forum clauses under the International Convention on Civil Liability' for Oil Pollution Damage, 1969 (CLC Convention), replaced by the 1992 Protocol and International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1979 (FUND), superseded by the 1992 and 2003 Protocols. 3 Ling Li, ‘Binding Effect of Arbitration Clauses on Holders of Bills of Lading as Non-Original Parties and a Potential Uniform Approach through Comparative Analysis’ (2012) 37(1) Tul Mar LJ 107. 4 IOS Eloy Gayán Rodríguez, ‘El arbitraje mtemacionaí en las pólizas de fietamento y en los conocimientos de embarqtie’ [1996] Revista de la Corte Española de Arbitraje 22. 5 Espinosa Calabuig, ‘Las cláusulas arbitrales marítimas a la luz de los usos del tráfico internacional’ (n 105) 14-15.
