Developments in Maritime Law Part 2 | |||
1 | 2 In the House of Lords, the cargo claimants asked their Lordships to depart from earlier established precedent and strike down the contractual clauses under Article III Rule 8. Their Lordships declined to do so. Lord Steyn, who gave the leading judgment, stressed the importance of certainty in international trade law. The position established in the earlier case law could only be departed from if it could be demonstrated that it had worked unsatisfactorily in the market place and had produced manifestly unjust results. Their Lordships did not find that this high threshold had been reached in this case. None of the arguments advanced by cargo owners to support a literal approach to Article III, Rule 2, which would impose a duty on the owners which could not be transferred by contract, were accepted. Their Lordships found that the approach in the earlier cases was not based on any technical rules of English law, but on “a perspective relevant to the interests of maritime nations generally”. Accordingly, the international perspective and the need for settled principle supported the owners’ position. This decision of the House of Lords has made it clear that a carrier can contract with the bill of lading holder so as to provide that it undertakes no responsibility for the operations of loading, stowing and discharge. It should be noted that there may still be circumstances where the carrier may be liable for the improper performance of the operations of loading, stowage and discharge under a bill of lading, notwithstanding such contractual arrangements. If the loading operations make the ship unseaworthy, then the carrier will remain responsible, because the obligation to provide a seaworthy ship under the Article III, Rule 1, is a non-delegable, non-transferable duty. Liability may also be incurred by the owner where the master actively intervenes in loading and stowing operations which are performed by the charterer and its stevedores under the contractual arrangements. The third decision concerning the application of the HVR concerns the application of the package limitation under the HVR where a carrier stows cargo on deck in breach of contract. In The Kapitan Petko Voivoda (5) the Court of Appeal upheld the decision of the Commercial Court in which Justice Langley had declined to follow the earlier decision in The Chanda (6). In The Chanda, Justice Hirst had decided that a carrier which stowed cargo on deck in breach of contract could not rely on the package limitation under the HVR. This decision was followed by the New Zealand High Court (7). Ultimately, the decision came down construing the provisions of the relevant Article of the HVR - Article IV, Rule 5. It was submitted by the cargo claimants that a breach of the obligation to stow under deck by the carrier was so significant that the package limitation could not apply. The argument was rejected primarily because the Court found that the use of the words “in any event” in Article IV, Rule 5 meant that the package limitation applied whether the breach of contract was serious or not and whether or not the cargo was stowed above and below deck. In my view each of the above decisions is likely to be followed and applied in New Zealand. 3. International ConventionsIn the regulation of shipping operations, international convention plays a very significant role. New Zealand now has in place, under the rule making powers under the MTA 1994, the mechanism by which to bring international conventions relating to such matters as the safe operation of ships and the prevention of marine pollution, quickly into New Zealand domestic law, once they have been ratified by the New Zealand Parliament. This means that those working and advising in the maritime area have to watch for the development and ratification of international Conventions. In the last 10 years, New Zealand has made significant advances in bringing the important international Conventions dealing with the safe operation of ships and the prevention of pollution into our law (8). In the near future we are likely to see increasing international cooperation in these areas and the consistent development and revision of international conventions. In the near future we will see Conventions which as the Hazardous and Noxious Substance Convention (“HNS”) and the Bunkers Convention come up for ratification. The HNS applies a civil liability regime, similar to the regime where currently applies to the carriage of oil in bulk, to the carriage of hazardous and noxious substances. The Bunkers Convention provides a liability regime for spills from bunkers. In these and other areas, Conventions, if ratified, can be brought into New Zealand law relatively quickly by the rule making process under the MTA. The international nature of the maritime business is reflected in the sources of law which we rely on in New Zealand. Just as maritime commercial people have to work in a world wide market, maritime lawyers have to work with a range of international sources of law which have a direct influence on New Zealand law. Indeed, this is the charm and attraction of this area of the law. I hope that this short paper has given you an insight into the nature of maritime law and how it develops. 5. 2003 EWCA CW451; [2003] 2 Lloyd, Rep 1, 1 | 2 | |||
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