2012 CELSMarc A.Huybrechts Elegis Law Office 1 MARITIME & TRANSPORT LAW BASIC CONCEPTS CELS 2012...

2012 CELS Marc A.Huybrechts Elegis Law Office

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MARITIME & TRANSPORTLAW

BASIC CONCEPTSCELS 2012

Marc A.HuybrechtsEm.Professor of Law

Univ of Leuven & AntwerpVisiting Professor Dalian Maritime

University


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Course Material on Websites

• The Slides of this class and other relevant course material will be available via memory stick and websites


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What is Maritime & Transport Law ?

• Broad scope

• Narrow Scope


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What Is Maritime Law?

• Maritime law explains the legal rules in relation to commerce over the high seas!

• It tells us how money is made and lost and made again by trading with vessels and cargo over the oceans !


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MARITIME LAW/ INTRODUCTIONWhat is Maritime Law?

• It is part of (international) commercial law

• Difference with the “Law of the Sea”(Public International Law)

• Border line cases.


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MARITIME LAW / INTRODUCTION

What is Maritime Law?

• Law in relation to trading activities over the oceans and the high seas…..


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A More Academic Definition of Maritime may be found in:

• UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

• No. 98-1934 (CA-93-902-N)• R.M.S. Titanic, Inc., etc.Plaintiff -

Appellee,versus• Christopher S. Haver, et al,• March 24, 1999• This is what the Court said about Maritime

Law:

Marc

Huybrechts:

12/10/2005

Marc

Huybrechts:

12/10/2005


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“The body of admiralty law referred to in Article III( of the US Constitution) did not depend on any express or implied legislative action. Its existence, rather, preceded the adoption of the Constitution. It was the well-known and well-developed "venerable law of the sea" which arose from the custom among "seafaring men," see United States v. W. M. Webb, Inc., 397 U.S. 179, 191 (1970), and which enjoyed "international comity,"see The Belgenland, 114 U.S. 355, 363 (1885).


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• Nations have applied this body of maritime law for 3,000 years or more. Although it would add little to recount the full history here, we note that codifications of the maritime law have been preserved from ancient Rhodes (900 B.C.E.), Rome (Justinian's Corpus Juris Civilis) (533 C.E.), City of Trani (Italy) (1063), England (the Law of Oléron) (1189), the Hanse Towns or Hanseatic League (1597), and France (1681), all articulating similar principles. And they all constitute a part of the continuing maritime tradition of the law of nations -- the “jus gentium”.


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Maritime Law /Definition• Maritime Law is the body of legal rules,that

relate to navigation ,transportation and commerce on the high seas.

• The traditional focus of this body of law is the ship(essential instrument)and the legal incidents that result from its operations.

• Maritime law deals with Public International Law i.e. The Law of the Sea,


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Continued

• National Public Law,Administrative law,• ( all sorts of operational permits must be

obtained from government agencies before a ship owner can operate )

• Environmental law• Private Law(Commercial law),Labour Law,

Criminal Law,European Law,(Safety, Competition law) See Herber p.1-6


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Transport Law• Deals with all rules and regulations concerning the

carriage of goods and persons in the broadest possible sense.

• Not all topics relating to Maritime Law or the Law of the Sea are part of Transport Law, such as the in rem actions on vessels, ownership and registration of vessels, real rights on vessels, collisons, salvage,pollution incidents of the sea and navigable waters.

• These topics are Maritime Law proper but not Transport Law !


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Transport Law

• Transport Law is not be found in one particular code but is spread over a number of various legal sources such as , Statutes ( national laws), national decrees and regulations, national orders in council, International Treaties,and of Course European Law(Directives,Regulations) and General Trade Conditions .

• Sources of Maritime and Transport law are multiple: local laws, European law, Public International Bodies,( such as UN, UNCTAD,UNCITRAL,IMO,) Trade and Professional Organisations (Such as FIATA,BIMCO and many others)


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Transport Law

• Transport Law touches upon• Law of Contract ( transport contract and its consequences)• Public and Administrative law ( all sorts of permits)• Penal or criminal law• Labour Law• Public International Law• European Law (mainly safety and competition rules)• Competition Law

• In our classes we will mainly concentrate on the contractual aspects of Transport law !


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Maritime Law(Do we really need this ?Why do’nt we get on with the real

job ?)

• § 1 Historical Introduction• The Phoenicians, The eastern

Mediterranean sea• The Greek Civilization• The Isle of Rhode and the Port of

Alexandria• The Lex Rhodia de jactu (3 rd or 2 nd

century B.C.) -the text is lost!


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Maritime Law/ Chapter One

• § 1 Historical Introduction (2)• But What about the East and Far East ,• Navigation in the far East?• In Arabian waters and India ?• Georg Hourani, Arab Seafaring in the Indian

Ocean in Ancient and Early Medieval Times(1951) & James Allsop,Tulane Mar.Law Journal,vol 34, 2010, p 556


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The History of Chinese Navigation

• In China between 1040 and 1117, the magnetic compass was being developed and applied to navigation. This let masters continue sailing a course when the weather limited visibility of the sky. The true mariner's compass using a pivoting needle in a dry box was invented in Europe no later than 1300.( from wikipedia )

• The Journeys of the Great Admiral Zheng He in Ming Dinasty ( seven naval expeditions)


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Maritime Law Chapter One Historical Introduction


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Maritime Law Chapter One• Phoenician Cargo Ship• Considered the best shipbuilders of the time,

the Phoenicians designed boats that depended more on wind than on manpower. Phoenician ships could carry more cargo than galley ships, which needed room for oars and rowers.

• Microsoft Illustration– "Phoenician Cargo Ship," Microsoft® Encarta® 96 Encyclopedia. © 1993-1995 Microsoft Corporation. All

rights reserved.


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Historical Introduction• Roman Empire (East) Digestae 527-

565A.D.(Dig. XIV,2) contained old Rhodian Maritime Law

• The Byzantine Rhodian Sea Law,(7/8 cent.)• The Basilica(Leo the Wise)(9th cent.)• Middle Ages after the collapse of the Roman Empire• CityStates,Trani(Adriatic)1063,Amalfi,1150,Pisa,1160, Barcelona• Regional Law-Oral Lex Maritima part of the Lex

Mercatoria


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Historical Introduction

• Consulado del mar/ Consulat de la Mar,Barcelona 1340

• Rolls of Oléron,France, Aquitaine,second half of the 12 th century,wine trade with England and Flanders(1266)

• Rules of Visby,Scandinavia ,the Baltic region

• Rules of Damme,Flanders


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• Hutton states that Eleanor of Aquitaine ordered her court to write down the rules of Oléron in 1148, based on either the Consolato del Mar or the Assizes of Jerualem or both….

• In 1152 Eleanor married Henry Plantagenet, the later king Henry II

• The rules became the foundation of what is now maritime law !


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• The Black Booke of Admiralty,end of 12 th century,England

• Guidon de la mer,(Rouen) France,16 th century (1556) a textbook also dealing with marine insurance


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MODERN TIMES

• 1681 COLBERT : “ORDONNANCE SUR LA MARINE” (LOUIS XIV)

• 1651 : NAVIGATION ACT,

• O. CROMWELL

• 19th CENTURY CODIFICATIONS FRANCE 1807 U.K, U.S.A. 1854


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MODERN TIMES

• 20th CENTURY : C.M.I.

• UNIFICATION OF MARITIME LAW BY:

a) INTERNATIONAL LAW SOCIETY

b) COMITÉ MARITIME INTERNATIONAL


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Sources of Modern Maritime Law

• CMI

• IMO ,UN,

• UNCITRAL

• UNCTAD

• BIMCO

• ICC

• FIATA


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Sources of Modern Transport Law

• IMO ( Maritime)

• ICAO ( Air)

• OTIF ( Rail)

• UN/ECE ( Road)


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MODERN TIMES

• C.M.I. Is the architect of MANY TREATIES which were ultimately signed by MANY DIPLOMATIC CONFERENCES convened in Brussels in the early 20 th century

• 2nd PART OF THIS CENTURY• INTERNATIONAL LEGISLATION IS NOW

TAKEN OVER BY :– U.N. I.M.O. UNCTAD

UNCITRALUNIDROIT


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IMO Full Style

• IMO (before 1982 it was named IMCO) - International Maritime Organization (IMO link in Chinese ), formerly Inter-governmental Maritime Consultative Organization (IMCO), is a specialized agency of the United Nations with its headquarters at 4 Albert Embankment, London SE1 7SR, England (tel.:+44 (0)20 7735 7611; fax: +44 (0)20 7587-3210; e-mail: [email protected] web site: http://www.imo.org). IMO was instrumental in the preparation of many international conventions and protocols( Tetley Glossary)

mailto:[email protected]

http://www.imo.org/

http://www.imo.org/


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Maritime Law ( other Sources of Law ?)

• But regretfully Maritime Law also develops on account of maritime disasters ( and also sometimes “Legal Disasters”)

• For example the Torrey Canyon oil spill (1967) resulted in two major conventions: the 1969 CLC convention and the “Intervention” Convention and the decision by the House of Lords in the “Tojo Maru”resulted in a new Limitation of Liability Convention.LLMC 1976


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§ 3. SOME SPECIFIC FEATURES OF M.L.

• SEPARATE FROM CIVIL LAW?

• 1)MARINE ADVENTURE

• COMMUNITY OF INTERESTS

• 2)PERSONALITY OF THE VESSEL?

• ACTION IN REM

• 3)ISOLATION OF THE OCEAN-GOING VESSEL


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§ 3. SOME SPECIFIC FEATURES OF M.L.

• POWERS OF THE MASTER / VERSUS “LIMITATION”

• 4)INTERNATIONAL NATURE OF M.L.

• LEX MERCATORIA

• TREATIES

• 5)WHY IS THERE NO UNIFORMITY?

Modern Transport LawOcean Carriage

• 1924 The Hague Rules ( HR)• 1968 The Visby Rules ( HVR)+ SDR

Protocol 1979• The HVR are still the Industry Standard• 1978 The Hamburg Rules ( now obsolete)• 2009 The Rotterdam Rules ( prepared by

CMI and mainly by UNCITRAL.Will they ever enter into force ? Maritime + treaty

Modern Transport LawInternational Inland Navigation

• The CMNI of 22 of June 2001

• The Budapest Rules

• 14 nations have ratified these rules

Modern Transport Law: Rail

• International :RAIL

• OTIF

• C.O.T.I.F. 1980 - C.I.M & C.I.V.

• 1999 NEW COTIF_PROTOCOL

• CIM

• CIV

Modern Transport Law: Road Haulage

• ROAD :– C.M.R. 1956– A.D.R. - dangerous goods (A, B section)– General features of the international road transportation– fairly rigid obligation for carrier to deliver a positive

result– a very general primary excuse: circumstances which the

carrier could not prevent and of which he could not foresee the consequences

– secondary defences: special situations and circumstances

– carrier also liable for a delay

Modern Transport Law: Road Haulage

• ROAD :• compulsory period of liability whilst the goods are

in the custody of the carrier• time for suit: one year starting at the moment of

delivery• time to formulate reserves and protest: for visible

damage immediately and for a hidden damage seven days after delivery

• limitation of liability 8,33 SDR (special drawing rights )per kilogram for loss or damaged goods


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Modern Transport Law

• Have a look at the Synopsis on Transport Law!

Modern Transport Law:AIR

– AIR :– Warsaw 1929 (where it started)– Montreal 28/05/1999

– New Montreal Convention replaces all the other conventions ( ratifying nations) !

– ICAO


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Modern Transport Law(Air Law)

• A new Convention for the Unification of Certain Rules Relating to International Carriage by Air was agreed at Montreal on 28 May 1999 setting new global rules on liability in the event of accidents for international air transport replacing those in the Warsaw Convention of 1929 and its subsequent amendments.

Modern Transport Law: Multimodal

• MULTIMODAL :– 1980, U.N. CONVENTION– Did not yet enter into force and probably never

will– Multimodal transport is often regulated by the

FIATA general conditions on the basis of agreement of parties to the transport contract

:

Sources• A lot of information can be obtained from the

following websites:• Admiralty and Law Guide• CMI• IMO• BIMCO• Lex Mercatoria• ICAO• The University of Oslo


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CELS 2012 : MARITIME AND TRANSPORT Glossary / THE CAST ON STAGE

With reference to the various transport treaties we could raise the following issues and examine all these treaties

on that basis :


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CELS 2012: MARITIME AND TRANSPORT Glossary / THE CAST ON STAGE

Question 1 :

On what basis can a carrier be held liable?


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Question 2 :

What persons besides the carrier could be

held liable?


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Question 3 :

What are the excuses or immunities

provided for in the treaties in favour of the

responsible person (carriers?)


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Question 4 :

What is the extent of the compensation to bepaid to the carrier and to what amounts canthe carrier invoke the benefit of limitation inhis favour (what are the exclusions of sucha limitation benefit?)


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Time for a suit Time to file a protest or give notice During what time span must the action

against the responsible person be instituted and when is the action against the carrier time- barred?

Within what time frame must a consignee filea notice or a protest when he receives hisgoods in a damaged condition or not at all …


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Essential Features Modern Transport Law

• The carrier commits himself to carry goods from one location to another; he does that on a contractual basis but the contract is mostly governed by local law or by international treaties which entered into local law.

• Basically is held to a specific positive result: he must deliver the goods correctly and undamaged.( and in some instances ,he must deliver timely)

• In return for that heavy burden the law will give him many excuses and immunities.

• On top of that the law will also give him the benefit of “limitation of liability”.( he will not be obliged to pay in full !)

• And on top of that if we want to sue the carrier, we must do that in a very short period of time; indeed the time for suit in transport law is normally very short! ( one year , two years)


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• Make a basic distinction between a carrier and a freight forwarder

• A carrier is a person who carries goods or causes a third party to carry the goods but he assumes all the liabilities of the carrier.

• A freight forwarder, or an Ocean freight forwarder, arranges for transportation of goods but he does not himself carry the goods nor does he assume the liability of such carrier. His liability is basically dealt with by general contract law. He is also known as the “architect” of the transportation. Very similar to an architect of a building project; the architect designs and will make all the necessary contracts with the contractors but he himself is not building.


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• The burden of proof in transport law• The shipper or the consignees have to prove the following:• A: the existence of the transport contract• B: damage or loss of the goods whilst the goods where in

the custody of the carrier; then the carrier is presumed to be liable for loss or damage

• evidence of receipt by carrier of a certain quantity of goods in apparent good order and condition

• evidence that the carrier delivered the merchandise with a loss or in a damaged condition

• Cargo interest should timely formulate reserves!


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• Then comes the burden of proof of the carrier:• carrier may try to prove that no loss or damage occurred

whilst the goods were in his custody.• carrier may try to rely on one of the many excuses or

immunities in its favour• Burden of proof of the shipper and consignee or the party

interested in the cargo• Rejection of the excuse or immunity and establishment of

specific fault committed by the carrier• Burden of proof by the carrier• The carrier may now try to invoke the benefit of limitation

of liability in its favour!


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• Multimodal Transport• Definition: article 1, UN Multimodal Convention

1980• “International multimodal transport means the

carriage of goods by at least two different modes of transport on the basis of a multimodal transport contract from a place in one country at which the goods are taken in charge by the multimodal transport operator to a place designated for delivery in a different country.”


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• By what legal rules will such a transport be covered?• Major dispute between those who favour a network system

and those who favour a uniform system.• Network system means: the multimodal transport operator

(MTO) will face a liability according to the law which is applicable to that particular part of the transport leg: Road transportation, rail transportation, maritime transportation or air transportation. When we have to judge the liability of the carrier we will do that according to the specific rules that are applicable to that specific part of the transport journey.


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• But an important question remains: what do we apply if we don't know during which part of the journey the damage occurred?


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• If we were to apply the uniform liability system, the liability of the multimodal transport operator is detached from the various subjacent transport modes.

• Commercial reality learns us that most of the time the industry will go for the network system.


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• Multimodal transport: what legal rules could be applied?• International chamber of commerce ICC 1975: model

contract• International Convention United Nations for multimodal

transportation of cargo 1980, uniform liability system but not in force yet and probably it will never enter into force.

• UNCTAD/ICC inspired by the International Multimodal Convention, model contracts since 1992 see also the FIATA multimodal Bill of lading


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• Some specific international conventions on transport law contain articles that relate to multimodal transportation but on a particular basis

• CMR article 2• CIM article 38• MONTREAL article 38• BUDAPEST rules article 2• Rotterdam Rules article 26 and 82


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• Just as an example:• Article 2, 1 CMR• • “Where the vehicle containing the goods is carried over part of the journey by sea, rail,

inland waterways or air, and, except where the provisions of article 14 are applicable, the goods are not unloaded from the vehicle, this Convention shall nevertheless apply to the whole of the carriage. Provided that to the extent it is proved that any loss, damage or delay in delivery of the goods which occurs during the carriage by the other means of transport was not caused by act or omission of the carrier by road, but by some event which could only occurred in the course of and by reason of the carriage by that other means of transport, the liability of the carrier by road shall be determined not by this convention but in the manner in which the liability of the carrier by the other means of transport would have been determined if a contract for the carriage the goods alone had been made by the sender with the carrier by the other means of transport in accordance with the conditions prescribed by law for the carriage of goods by that means of transport. If, however, there are no such prescribed conditions, the liability of the carrier by road shall be determined by this convention.”


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• Montreal art. 38• “Chapter IV - Combined Carriage 154• Article 38 - Combined carriage 155• 1. In the case of combined carriage performed partly by air and partly

by any other mode of carriage, the provisions of this Convention shall, subject to paragraph 4 of Article 18, apply only to the carriage by air, provided that the carriage by air falls within the terms of Article 1.

• 2. Nothing in this Convention shall prevent the parties in the case of combined carriage from inserting in the document of air carriage conditions relating to other modes of carriage, provided that the provisions of this Convention are observed as regards the carriage

• by air.”


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• New Maritime Transport Rules: 2009 Rotterdam Rules

• General features of these new rules• Prepared by UNCITRAL with some initial aid by

CMI• Signed in Rotterdam in September 2009• Lengthy and fairly complicated document• Maritime plus meaning that is not fully

multimodal but partly


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• Introduction of freedom of contract at the request of the United States: Volume contracts Ocean Liner Service Agreements (OLSA)

• New concept: maritime performing parties will also benefit from the new rules

• A fairly explicit chapter on jurisdiction but with an exception for regional economic entities meaning the European Union which will have a separate treatment respecting its own rules on jurisdiction

• Contractual freedom for sophisticated parties and volume contracts; only for liner services


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• Carrier service commitment• Limitation as to contractual freedom• Not applicable to the duty to provide continuously a

seaworthy vessel• The duty by the shipper to provide sufficient information

on dangerous cargo• All the rules dealing with dangerous cargo article 33:

compulsorily applicable• And the rules in relation to the breaking of limitation of

liability are also compulsorily applicable.


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• The transport contract must mention that the contract deviate from the treaty

• The contract must be negotiated on an individual basis and must specify which parts deviate from the treaty

• The shipper must be given the possibility and must be informed that he can insist on a contract in compliance with the treaty

• The deviations from the treaty must not be incorporated and referred to in a faraway document or in a public tariff list


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• Protection of third parties• Third parties must be given the necessary

information which will prominently indicate that the volume contracts deviate from the treaty

• Third party must explicitly agree to be bound by these deviations

• This acceptance by the third party should not solely be derived on the basis of the public tariff list and the transport document or electronic Data.


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• The party willing to rely on these deviations must establish that the conditions allowing for a deviation have been fulfilled.

• Liability of the carrier under the Rotterdam Rules• Carrier is supposed to be liable -reversed burden

of proof• Possibility of direct claims against maritime and

other performing parties


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• Period of responsibility: door to door as opposite to tackle to tackle under the HVR

• Free in free out clauses (FIOS) are permitted article 13 paragraph 2 article 17 paragraphs 3


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• The liability of the carrier has been increased under the new rules

• In a number of cases he is covered by a uniform liability system for the entire transport also the multimodal aspects.

• Carrier has a continuing duty to provide a seaworthy vessel, properly man it and maintain it.

• Carrier has lost the possibility to invoke nautical fault in its favour

• Carrier is also liable for a delay but only when a specific delivery date had been agreed


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• Time for suit or prescription period is now fixed at two years

• Limitation of liability and has been increased: three special drawing rights per kilo

• or 875 special drawing rights per unit: for delay 2 1/2 times the amount of the freight


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• Deck cargo under the Rotterdam rules: article 25• Deck cargo is now admitted in three situations• When deck cargo is obligatory by law• When the goods are being carried in containers which are fit for

transportation on deck and when the decks are specially equipped for this type of transportation

• When such deck cargo transportation is in conformity with commercial practices and the practices of the trade.

• When these conditions are being met the carrier is no longer liable for damage caused by this transportation on deck but when these conditions are not met, the carrier loses the defences as provided in article 17 of the treaty


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• Liability of the shipper• See article 1 paragraph 8 and article 1 paragraph 9• Covered by the articles 27 to 34• Shipper is responsible for providing the correct

information and for providing relevant information in relation to dangerous cargo

• Unlike the carrier who can invoke the benefit of limitation of liability, the shipper cannot invoke the benefit of limitation of liability


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• Performing parties• The contractual carrier is liable for each and every

performing party under a Transportation covered by the Rotterdam Rules, article 18

• A maritime performing party is covered by the Rotterdam Rules, see article 19, if its activities take place during the period of responsibility in conformity with article 12 of the treaty.

• A non maritime performing party is not covered by the Rotterdam Rules and its liability will be assessed either by a specific treaty applicable or by local law.


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• The transport documents

• The term Bill of lading as such is no longer used, negotiable Bill of lading or similar document no longer used

• Goods will be delivered without the production of a negotiable document possible under article 47 of the treaty


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• Jurisdiction• Cases against the carrier can be introduced• 1) Either at the domicile of the carrier• 2) In the place where the goods have been received as

provided for in the contract • 3) In the place where the goods have been delivered as

provided for in the contract• 4) In the port where the goods have been loaded on board

initially or in the courts of the port where the goods have finally been discharged from the vessel

• Jurisdiction clause is possible but exclusively when it has been specifically agreed on in volume contracts.


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• Arbitration under the Rotterdam rules: article 77

• Similar of places to start up arbitration proceedings

• Arbitration agreement is binding so that a claimant cannot start up court proceedings in violation wit his initial commitment to arbitrate


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• Special exception for European Union: see article 93 of the rules

• Regional economic integration organisations

• EU Directive 44 / 2001 made it necessary to have this special treatment!


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• Entry into force of the Rotterdam rules

• The Rotterdam rules will enter into force after one year after the 20th ratification protocol, acceptance, approval or adherence will have been received.


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• Will the rules become applicable?• Opinion of Professor Richard Williams of the

Swansea University, Wales• Why do we replace an imperfect system such as

the Hague Visby rules by another imperfect system?

• Some predict that if the rules are not accepted we will end up in absolute Chaos and the hope for uniformity in Transport law will have disappeared for a very long time.

2012 CELSMarc A.Huybrechts Elegis Law Office 1 MARITIME & TRANSPORT LAW BASIC CONCEPTS CELS 2012...

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