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FORUM SELECTION IN CONTRACTS FOR THE CARRIAGE OF GOODS BY SEA: THE EUROPEAN DIMENSION

Lloyd's Maritime and Commercial Law Quarterly

FORUM SELECTION IN CONTRACTS FOR THE CARRIAGE OF GOODS BY SEA: THE EUROPEAN DIMENSION Yvonne Baatz * This article considers the effectiveness of a choice of forum in a contract for the carriage of goods by sea under the rules of Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“Brussels I”) and the revisions to Brussels I proposed by the European Commission. Whether a choice of a forum can be invalidated by a maritime Convention such as those containing the Hague, Hague-Visby, Hamburg and Rotterdam Rules, or national legislation similar to one of those Conventions, is explored in the light of the express provisions on choice of jurisdiction, international Conventions and public policy in Brussels I. A. INTRODUCTION The purpose of this paper is to consider the role of the forum in determining jurisdiction in relation to contracts for the carriage of goods by sea in the context of Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“Brussels I”). 1 The important issue is the effectiveness of a choice of forum and whether a choice of a forum can be invalidated by a maritime Convention or national legislation similar to one of the maritime Conventions such as those promulgating the Hague-Visby, 2 Hamburg 3 or * Professor of Maritime Law and Member of the Institute of Maritime Law, University of Southampton. My thanks go to: Jennifer Lavelle, formerly research assistant with the Institute of Maritime Law, for her invaluable help; Professor Mikis Tsimplis for his stimulating comments; and the Institute of Maritime Law, which supported me in organising a colloquium on Maritime Conflict of Laws on 1 and 2 October 2010 together with the Scandinavian Institute of Maritime Law, University of Oslo and the Tulane Maritime Law Centre, Tulane University. This article forms part of my paper at that colloquium. All errors remain those of the author. 1. Brussels I entered into force in the United Kingdom on 1 March 2002 and replaced the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 as amended by Conventions on the Accession of new Member States (“the Brussels Convention”). For current purposes Brussels I, the Brussels Convention and the EFTA Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1988 (“the Lugano Convention”) and the revised Lugano Convention 2007 are treated as identical, unless expressly stated otherwise. 2. The International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading (Brussels 25 August 1924) as amended by the Protocol signed at Brussels on 23 February 1968 and by the Protocol signed at Brussels on 21 December 1979. 3. The UN Convention on the Carriage of Goods by Sea 1978. Although the Hamburg Rules did not achieve the international support hoped for by its promoters, some states which did not ratify them, such as Canada and the Nordic countries, have introduced similar national legislation on jurisdiction. See, eg, the Canadian Marine Liability Act 2001, s 46, considered in OT Africa Line Ltd v. Magic Sportswear Corp [2005] EWCA 710; [2005] 2 Lloyd’s Rep 170; discussed post , 214. On the Nordic position, see, eg, P Wetterstein, “Jurisdiction and Conflict of Laws under the New Rules on Carriage of Goods by Sea”, in H Honka (ed), New Carriage of Goods by Sea: the Nordic Approach Including Comparisons with Some Other Jurisdictions (Institute of Maritime and Commercial Law, Abo Akademi University, Abo, 1997); T Falkanger, HJ Bull and L Brautaset, Scandinavian Maritime Law: The Norwegian Perspective , 2nd edn (Oslo: Universitetsforlaget, 2004), [1.52] and [14.31] on the Maritime Code of 1994; H Honka, “Jurisdiction and EC Law: Loss of or Damage to Goods”, ch 7 of M Davies (ed), Jurisdiction and Forum Selection in International Maritime Law: Essays in Honor of Robert Force (Kluwer Law International, 2005). FORUM SELECTION IN CONTRACTS 209

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