Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio
Chapter C.3: Carriage of goods by sea
I. Background and purpose of the uniform law
Transport, and maritime transport in particular, constitutes an intrinsically international phenomenon in that it (i) is usually connected to more than one legal system and, due to such ‘international character’, (ii) requires uniform regulation, independent of national systems of conflict of laws as well as of substantive law.
Uniformity of regulation was first achieved through adopting a number of uniform law conventions with mandatory force: (i) the Hague Rules (International Convention of 25 August 1924 for the unification of certain rules relating to bills of lading, 120 LNTS 155), in force since 2 June 1931 and subsequently amended by the Visby Protocol of 23 February 1968 (Protocol of 23 February 1968 to amend the p. 262International Convention for the unification of certain rules of law relating to bills of lading signed at Brussels on 25 August 1924 (Hague Rules), 1412 UNTS 128) and by the Brussels Protocol of 21 December 1979 (Protocol of 21 December 1979 to amend the International Convention for the unification of certain rules to bills of lading (Hague Rules) as modified by the Amending Protocol of 23 February 1968 (Visby Protocol), 1412 UNTS 146; the Hague Rules and the two additional Protocols are known as the ‘Hague-Visby Rules’). A list of contracting countries (both to the original text of the 1924 Brussels Convention and to the Hague-Visby Rules) may be found at <www.comitemaritime.org>; (ii) the Hamburg Rules (United Nations Convention of 31 March 1978 on the carriage of goods by sea, 1695 UNTS 3), in force since 1 November 1992. A list of contracting states may be found at <www.uncitral.org>. More recently on 11 December 2008, the Rotterdam Rules (United Nations Convention of 11 December 2008 on contracts for the international carriage of goods wholly or partly by sea, UN Doc A/RES/63/122, 63 UNTS 122) was adopted by the General Assembly of the United Nations, but has yet to enter into force.
The common objective of these conventions is (i) to avoid conflicts of laws, by preventing identical cases from being decided differently according to the applicable lex causae, as well as (ii) to establish minimum levels of carrier liability. In fact, these conventions prevail over the national laws of the contracting states, which are compelled to ensure application of the international regulation over (i) private international law provisions as well as (ii) any other regulation lacking the equivalent legal strength. Nor can the mandatory scope of application of the conventions at issue be restricted by the parties interested in the transport, whose freedom is therefore confined to the possibility of (i) extending the scope of application of the uniform law or (ii) establishing a more beneficial regime for the cargo owners and/or shippers. As a matter of fact, the need to introduce mandatory and binding regulation in maritime transport has traditionally been motivated by the presumption that – in the case of liner transports falling within the scope of application of the conventions at issue – shippers tend to be in a weaker bargaining position than carriers.
Conversely, in the case of transports subject to voyage charter parties, the application of the international conventions is not mandatory and there is no need to restrict party autonomy with a view to protecting shippers, since they may at times be even economically stronger than the carrier (as is certainly the case of the ‘oil majors’). In such circumstances, contracts related to tramp transports – which are usually documented by charter parties – are not regulated by the international conventions, but rather through the application of the relevant conflict-of-law rules. The uniformity which also characterizes these contracts because of their intrinsically international character is therefore accomplished (a) by means of the harmonization of private international law, as well as (b) through the endorsement of →party autonomy. With regard to point (a), as far as EU law is concerned, the harmonization process has been realized through the adoption of the Rome Convention (Rome Convention on the law applicable to contractual obligations (consolidated version),  OJ C 27/34), which has subsequently been replaced by the Rome I Regulation (Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I),  OJ L 177/6; →Rome Convention and Rome I Regulation (contractual obligations)). With regard to point (b), it is important to underline that in the area of tramp transports a degree of legal uniformity has been achieved above all on the basis of the standard charter party forms customarily adopted by international commercial operators and through the recognition of their effects in all legal systems.
II. Uniform law conventions
1. The scope of application
In order to identify the law applicable to maritime liner transport, it is first necessary to ascertain whether the case at issue falls within the scope of application of the uniform law. In this regard, art 10 of the Hague Rules delineates its scope of application, by reference to two distinct elements: (i) first, a bill of lading has to be issued; (ii) second, its issuance has to be effected in a contracting state. This provision has raised significant interpretative difficulties, since – although it does not expressly prescribe that the carriage has to have an international character in order for the Convention to apply – this requirement has nevertheless been deemed necessary according to the practice where several p. 263doubts have been expressed as to the (subjective or objective) nature of this international character.
The 1968 Visby Protocol has significantly amended the scope of application of the Hague Rules by providing that its rules will apply to cases where (i) the bill of lading is issued in a contracting state, or (ii) the carriage is from a port in a contracting state, or (iii) the parties have opted for the application of the uniform law convention, whether directly or by means of choice of the law of a contracting state. The same provision also specifies that the Hague-Visby Rules are only applicable to bills of lading relating to transports intended to take place between ports in two different states. The requirement of the sole objective element of internationality for the purpose of determining the scope of their application confirms the irrelevance of subjective elements such as the nationality of the ship or of the parties.
The importance of →party autonomy, recognized by art 10 of the Hague-Visby Rules, suggests that – also in order to ascertain the international character of a maritime transport – the objective elements of the relation have to be assessed according to the intention manifested by the parties at the moment of conclusion of the contract and issuance of the bill of lading, even though the carriage might have been subsequently performed otherwise. This solution, as a matter of fact, is the only one specifically functional to the objective – common to all uniform law systems – of ensuring ab initiolegal certainty and foreseeability of the applicable law – an objective which would most certainly be frustrated if the international elements relevant for the application of the uniform law had to be ascertained only ex post on the basis of the actual execution of the transport.
As already mentioned, art 10 of the Hague-Visby Rules further assigns to party autonomy a specific and autonomous relevance. Indeed, according to art 10, the uniform law will also apply to international maritime shipments effected between ports situated in non-contracting states, where the parties make direct or indirect reference to it as applicable law in the bill of lading. The same rule is also provided by art 2.1(e) of the Hamburg Rules, whose application – according to art 2.1(b) and (c) – depends upon the further condition that the port of discharge be situated in a contracting state.
By contrast in the Rotterdam Rules, the will of the parties does not per se represent a relevant connecting factor for the application of the uniform law even if these Rules confirm the trend towards the widest possible application of the uniform law. Indeed, art 5 provides that the Rotterdam Rules also apply in the presence of a sole objective connecting factor with a contracting state which might be represented, alternatively, by the place of receipt or delivery of the cargo, as well as by the port of its loading or discharge. However, art 5 also specifies – consistently with case-law developed on the basis of the previous uniform law conventions – that, for the purposes of identification of a connecting factor, regard will be had to what the parties have agreed under the contract, as opposed to what has actually been put in place during the transport. In other words, the relevant →connecting factor is the place of delivery indicated in the bill of lading rather than the actual place of delivery of the goods by the carrier.
2. Conflicts of conventions
The coexistence of the uniform law conventions in question creates the need to identify criteria in order to deal with potential overlapping in their scope of application.
This issue was initially raised with reference to the relations between the rules provided by the Hague Rules and the amendment subsequently introduced by the 1968 Visby Protocol and 1979 Brussels Protocol, with specific regard to the problem of identifying the law applicable to a maritime transport where (i) the bill of lading was issued in a state which is party only to the Hague Rules, but (ii) the competent court belongs to a state which also ratified the Protocols. With a view to resolving this issue, several states – among them Italy – declared on the occasion of the ratification of the 1968 Visby Protocol and 1979 Brussels Protocol that they consider as ‘contracting states’ for the purposes of art 10 of the Hague-Visby Rules both states which ratified the Protocols and those which are party only to the Hague Rules. According to this solution, the new regime resulting from the amendments introduced by the Protocols will apply, even though the bill of lading was issued in a state which is party only to the Hague Rules.
Maritime transports which fall within the scope of application of both the Hamburg Rules and the Hague-Visby Rules give rise to even more complex interpretative issues. One might consider, for instance, carriages where the p. 264bill of lading has been issued in a state which is party to the Hague Rules – with consequent application of that Convention according to its art 10 – while the port of delivery is in a contracting state of the Hamburg Rules, which therefore apply according to their art 2.1(b). In such a situation, it seems reasonable for each state to apply the uniform regulation to which it is a contracting party. This is because, for both legal systems involved, the uniform law which they did not ratify must be considered an extraneous legal instrument, over which the uniform law applicable in the →lex fori inevitably prevails.
With a view to dealing with the uncertainties flowing from the potential overlap of the scope of application of the various uniform law conventions, a significant role might be played by party autonomy by inserting paramount clauses capable of coordinating the application of the Hague Rules and of the Hamburg Rules. For this specific purpose, BIMCO, after the entry into force of the Hamburg Rules, issued a special circular recommending the adoption of two models (Form A and Form B) of paramount clause. More specifically according to Form A, the Hague-Visby Rules prevail over the Hamburg Rules, whose application is then confined to cases where (i) the Hague-Visby Rules neither apply proprio vigore nor according to a choice-of-law reference and (ii) application of the Hamburg Rules is mandatory in the state of loading or in the state of issuance of the bill of lading. Form A also provides for a special regime of limitation of carrier liability for cases where neither uniform law instrument is mandatory. Conversely, according to Form B – recommended for transports between states which are contracting parties to the Hamburg Rules – the Hamburg Rules prevail over the Hague-Visby Rules, whose application is then confined to cases falling outside the scope of application of the Hamburg Rules. Moreover, Form B also provides for a special regime of limitation of carrier liability for cases where neither of the concerned uniform law instruments is mandatory.
III. Uniform choice-of-law rules
1. Relevant rules and their structure
Outside the scope of application of the relevant uniform law conventions, the law applicable to contracts of carriage of goods by sea has to be identified according to the general principles and specific rules of private international law. Within EU law, the relevant choice-of-law provision was initially codified by the Rome Convention, successively recast – with significant changes – in the Rome I Regulation, which is applicable in all Member States except for Denmark.
Moreover, the solution based upon the application of art 4(2) ultimately ignored the connection of the carriage to the place of delivery, whose law could only become relevant according to the →escape clause provided for by art 4(5).
provides explicitly that the presumption laid down in Article 4(2) does not apply to a contract for the carriage of goods and lays down a number of specific connecting criteria enabling the law applicable to that type of contract to be determined, as the carrier’s place of residence is not deemed sufficient on its own.
In the light of these considerations, the solutions adopted by art 4 of the Rome Convention were reconsidered on the occasion of its recasting in the Rome I Regulation. Article 5 Rome I Regulation, in continuity with its predecessor, (i) gives relevance, in the first place, to the law chosen by the parties according to art 3 Rome I Regulation, which is expressly referred to by the rule at issue. Absent choice of applicable law by p. 265the parties, art 5 (ii) provides for the application of the law of the carrier’s country of habitual residence, provided, however, that the place of receipt or of delivery or the consignor’s habitual residence is also situated in that country. Where this coincidence is lacking, art 5 Rome I Regulation – differently from the previous provision of the Rome Convention – provides that (iii) the law of the country where the place of delivery as agreed by the parties is situated has to be applied, no additional connection with that state being required.
Finally – in derogation from the above criteria and absent a choice of law agreement according to art 3 of the Regulation – art 5, similarly to art 4(3), (iv) allows the judge to apply the law of a country other than that indicated by the aforementioned provisions (supra sub (ii) and (iii)), where it is clear that the contract is manifestly more closely connected with that country.
2. Special notions and autonomous interpretation
As far as the notion of carriage utilized in the relevant conflict-of-law rules is concerned, art 4(4) of the Rome Convention introduced a wide notion of contract for the carriage of goods, with a view to also encompassing single-voyage charter parties and other contracts whose main aim is the carriage of goods. These other contracts, according to the interpretation given by the ECJ in Case C-133/08 Intercontainer Interfrigo SC (ICF) v Balkenende Oosthuizen BV and MIC Operations BV  ECR I-9687, are those whose main purpose – as construed in the light of the contractual purpose as well as of the obligations of the party effecting the characteristic performance – is not merely to make available a means of transport, but also to actually perform the carriage of goods.
In this vein, in Case C-305/13 Haeger & Schmidt GmbH v Mutuelles du Mans assurances IARD (MMA IARD) and Others  OJ C 439/8, the ECJ has recently stated that a commission contract for the carriage of goods – which is a ‘separate contract the characteristic performance of which consists in organising the carriage of goods’ and whose principal purpose is not per se the carriage of goods – may nonetheless ‘turn out to relate to the specific nature of a contract for the carriage of goods . . . if its principal purpose is the transport as such of the goods’ – a condition which the national court has to ascertain by ‘examining the overall circumstances of the dispute’ with a view to ‘taking account of the purpose of the contractual relationship, the actual performance effected and all of the obligations of the party who must effect the characteristic performance, and not the parties’ categorisation of the contract’.
On the basis of such clarifications – which apply also to the Rome I Regulation as per Recital (22) – it can be observed that the notion of contract for the carriage of goods (i) has to be the object of an autonomous interpretation according to EU law (→Interpretation, autonomous), (ii) is independent from the categories of national law and (iii) requires, in order to be applied, a thorough examination of the particulars of each contract, to be conducted in the light of the criteria laid down by the ECJ in the Intercontainer Interfrigo judgment.
Accordingly, the term ‘carrier’ should refer to the party to the contract which undertakes to carry the goods, irrespective of whether it actually performs the carriage itself. Therefore, the lack of coincidence between the party designated as carrier by the contract and the person actually performing the carriage (the so-called ‘actual carrier’) is irrelevant for the purposes of the rule at issue. Conversely, the term ‘consignor’ should refer to any person which enters into a contract of carriage with the carrier, irrespective of whether it has any right in rem in the cargo to be carried by sea. Such clarifications are particularly relevant in order to identify the law applicable to the forwarding contract, in which the forwarding agent arranges the performance of the carriage without performing it directly (→Freight forwarding contracts). As a matter of fact such a contract might be considered as carriage of goods according to art 5 of the Regulation, in the light of the above recital. Indeed, it may be argued that the freight forwarder who is entrusted to organize the transportation in his own name and on his own account could qualify both as carrier towards the cargo owner/shipper and, at the same time, as consignor for the purposes of the contract of carriage entered into with the actual performing carrier.
3. Priority of party autonomy
According to the Rome I Regulation, →party autonomy plays an important role in determining the law applicable to the contract for the carriage of goods. In accordance with the p. 266general principles underlying the Regulation, the objective connecting factors employed by art 5 are only relevant to the extent the parties made no choice on the law applicable to their contract. Article 5(1) of the Regulation is quite clear in this regard, since it makes an express reference to the principal and subjective connecting factor provided by art 3 of the same instrument.
The importance of party autonomy in the carriage of goods derives from several circumstances, which also explain why it was not considered necessary to introduce the limitations to party autonomy with reference to the carriage of goods as introduced for the regime of the carriage of passengers.
It has already been observed (section I above) that, as far as liner shipping is concerned, the imbalance in bargaining power between the parties involved has historically brought about the elaboration of international conventions of uniform law, which have a binding scope of application and cannot be derogated by party autonomy. On the contrary, with reference to carriage of goods executed through charter parties, the parties are in a situation of equal bargaining power and consequently the charterer and the shipowner/disponent owner enjoy a large degree of freedom in the regulation of their relationship. Further, the effects of their choices in this regard are readily evident in all legal systems.
Moreover, as far as the contract for the carriage of goods by sea is concerned, party autonomy plays an essential role both from the perspective of private international law and of substantive law. This is because contractual schemes currently employed in practice aim at providing a complete and self-standing regulation, which does not usually require to be integrated or complemented through the specific provisions of any national law.
Accordingly, the importance of party autonomy in the carriage of goods with respect to both substantive law and private international law becomes particularly evident in the area of charter parties. Here parties are even allowed to extend the application of uniform law conventions concerning bills of lading to charter parties which are, in principle, not applicable to such contracts. The Hague-Visby Rules and the Hamburg Rules, although expressly excluding from their scope time or voyage charter parties, are nevertheless drafted in such a way as to adequately regulate at least the duties and the responsibilities of the shipowner who assumes towards the charterer the risks of loading, custody and carriage of the goods under the charter party.
Therefore, in each case it is necessary to establish – in the presence of a paramount clause – whether the uniform law operates: (i) as the law applicable to the contractual relations that the charterer has entered into with third parties on the basis of the bill of lading; or (ii) as the law applicable to the time or voyage charter according to the choice of the parties; or, finally (iii) as a system of rules incorporated by reference into the contract of charter party.
The scenario under (i) gives rise to no particular issues, since it falls within the scope of application of the uniform law conventions. Indeed, whenever, in relation to an international contract of charter party, a bill of lading is issued and is transferred to third parties interested in the carried goods, then the voluntary reference to the international uniform law – even in the absence of other connecting elements to the contracting states – is sufficient to render its application binding and mandatory.
The scenario considered under (iii) is also not particularly problematic, since it concerns contracts of charter parties (in principle falling outside the scope of application of the uniform international law) where the paramount clause agreed by the parties is allowed to regulate the specific aspects of their relationship by a voluntary incorporation of the international uniform law; the effects of whose incorporation are recognized in all legal systems. Therefore, even if the parties are entitled to exercise their autonomy within the limits established by the lex causae and such law does not coincide with the law of a state which is party to the uniform law convention, the international regime will nevertheless apply – outside its original scope of application – to the contractual relations entered into by the parties and ruled under a charter party.
The reference to the Hague-Visby Rules or to the Hamburg Rules tends to be more critical in the second of the above-mentioned hypotheses. Indeed, in the scenario listed under (ii), the parties intend to refer to international uniform law as the law applicable to the contract. While it is certainly true that, according to the traditional approach, the reference to an international convention cannot be qualified as a pactum de lege utenda, it also has to be considered that the Rome I Regulation – without apparently p. 267departing from such an approach – expressly states (Recital (13)) that this kind of reference is not prohibited. As a consequence, in such circumstances the reference to the uniform law will at least restrict the exercise of substantial party autonomy and lead to the application of uniform law to all issues covered by it, under the same criteria and effects above mentioned under (iii).
4. Objective connecting factors
The combination of connecting factors employed by art 5 Rome I Regulation has a cumulative and alternative character. Indeed, according to the first sentence of art 5(1), the law of the country of carrier’s habitual residence applies only to the extent that it coincides with the place of receipt or the p. 268place of delivery or the place of consignor’s habitual residence. Through this mechanism, art 5 tempers the criterion of the carrier’s habitual residence by conditioning its application upon the existence of further connections between the case at issue and the law indicated by that criterion. Indeed, the sole criterion of the carrier’s habitual residence – despite its being previously employed by the private international law systems of several EU states and despite its being consistent with the criterion of the characteristic performance adopted by art 4(2) Rome I Regulation – was deemed to be liable to alter the contractual balance between the carrier and the consignor, if applied in the absence of any further criteria. In any case, for the purpose of the connecting factor of habitual residence: (i) the habitual residence of companies and other bodies, corporate or unincorporated, is to be the place of central administration; while (ii) the habitual residence of a natural person acting in the course of his business activity is to be his principal place of business (art 19(1) Rome I Regulation).
Furthermore, according to art 19(2), ‘where the contract is concluded in the course of operations of a branch, agency or any other establishment’ the habitual residence of the carrier/shipowner will coincide with the place where the branch, agency (→Agency and authority of agents) or any other establishment is located. This provision on the one hand offers a higher degree of certainty with reference to the identification of the parties’ habitual residence, and on the other hand, indirectly increases the relevance of the place where the contract was made, which normally coincides with the place where the goods are loaded.
As to the place of consignment and the place of delivery, art 5 of the Regulation fails to clarify whether reference has to be made only to their localization in accordance with the agreement reached by the parties or to the place where consignment or delivery are actually performed. For this purpose, the objective nature of the →connecting factor at issue – together with the observation that the provision in question, in contrast to the first sentence of art 5(1) makes no express reference to the agreement of the parties – suggests that the objective interpretation is to be preferred.
It has already been mentioned that – according to art 5 of the Regulation – the connecting factor represented by the carrier’s habitual residence is only relevant in the presence of further connecting elements. Where the coincidence of the carrier’s habitual residence on the one hand, with the above cumulative and alternative criteria on the other hand, is lacking, art 5 of the Regulation designates the applicable law exclusively through the connecting factor represented by the place of delivery agreed by the parties. Indeed, that place – although coinciding neither with the place of conclusion of the contract nor with the carrier’ or shipper’s seat – is considered to be a more relevant locus executionis than the place where the goods are received by the carrier for loading. This is in the light of several practical circumstances. For instance, damages or loss are normally ascertained and determined in the state of delivery, and in that state persons with an interest in the delivered goods usually bring judicial proceedings with a view to ascertaining the damage or to obtaining adequate guarantees from the carrier and/or the shipowner, or more generally in order to adopt protective measures such as arrest of the vessel. On the basis of these considerations, it can be seen that the centre of gravity of the contractual relationship between the shipowner and the persons interested in the cargo move from the port where the goods were loaded to the port where the goods are delivered, which is accordingly more closely connected to the carriage.
As far as the notion of place of delivery is concerned, the second sentence of art 5(1) Rome I Regulation clarifies that it refers to the place of delivery as agreed by the parties according to the contract as opposed to the place where the goods are actually unloaded. However, art 5(1) does not specify whether the place of delivery coincides with the place where the goods are to be made available to the consignee or with the place where they are actually delivered. Furthermore, art 5(1) does not specify the law applicable to the contract for the carriage of goods if it is impossible to determine the place of delivery agreed by the party according to the contract.
In this respect, regard might be had to the principles established by the recent ECJ judgments in Case C-381/08 Car Trim GmbH v KeySafety Systems Srl  ECR I-1255 and Case C-87/10 Electrosteel Europe SA v Edil Centro Spa  ECR I-4987. In accordance with this jurisprudence, if it is impossible to determine the place of delivery on the basis of the contract without referring to the substantive law applicable to the contract and without specific indication derived from the wording of the contract, the place of delivery is to be intended as the place where the physical transfer of the goods to the consignee actually took place or should have taken place. This solution – which makes applicable in the context of the Rome I Regulation solutions developed with reference to the Brussels I Regulation (Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters,  OJ L 12/1; →Brussels I (Convention and Regulation)) – also appears to be consistent with the systematic approach followed in the interpretation and application of EU Regulations in the field of judicial cooperation in civil matters. This particular approach is expressly mentioned by Recital (7) Rome I Regulation as well as in Recital (7) →Rome II Regulation (Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II),  OJ L 199/40).
Nonetheless, also in the light of the interpretation suggested above, the connecting factor of the place of delivery does not prevent the risk of application of different laws to the same contractual relationship in all cases where – during the same voyage – the contract includes several carriages with different destinations as well as different carriers. In order to prevent such inconveniences, the Regulation should have specified that the place of delivery relevant for the application of the rule at issue is only the one situated in the port of final destination, but such a provision, even if proposed, was not introduced in the Regulation. It is to be hoped that the ECJ will offer a clarification in this respect by means of interpretation of the rule at issue in the sense indicated above.
5. The escape clause
The law designated by art 5 Rome I Regulation is not to apply ‘where it is clear from all circumstances of the case that the contract, in absence of a →choice of law, is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2’. In this case, ‘the law of that country shall apply’.
Such is the content of the safeguard clause (also known as the →escape clause according to Recital (20) Rome I Regulation), which – according to art 5(3) of the Regulation – also applies to contracts for the carriage of goods, though it is more strictly formulated than it was under the Rome Convention. Indeed, such stricter formulation of the safeguard clause was adopted in order to prevent potential abuses in its application as well as to avoid its excessively frequent application, according to several proposals advanced during the preparatory works leading to adoption of the Regulation.
The clear wording of art 5(3) of the Regulation coincides with that of art 4(3) of the same instrument. It seems to definitely prevent, also with reference to the carriage of goods, the escape clause being used as an open closest connection test. Indeed, if the escape clause were to be construed as allowing a large-scale derogation from the application of the conflict rules laid down by art 5(1) of the Regulation also in the absence of a clear and overwhelming closer connection, then the pursued objective of legal certainty would most certainly be frustrated.
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