On the coming into force of the Carriage of Goods by Sea Act 19711 the Hague-Visby Rules set out in the Schedule to that Act replaced the Hague Rules in English law. But it remains uncertain whether the replacement is through rules mandatorily applied to all cases within them or whether they apply only when English law governs the contract. The question is relevant not only to choice of law but to arbitration clauses and choice of forum, both in the actual choice through suit and choice by agreement in the bill of lading or other relevant document.

Choice of jurisdiction and choice of law clauses are common in bills of lading and no doubt are inserted in the full knowledge that their effectiveness is uncertain. A common form is to refer both jurisdiction and law to the place where the carrier has his principal place of business. This may be modified by a specific provision incorporating the Hague Rules or Hague-Visby Rules through specific national legislation (usually the place of shipment) or directly as part of the contract.2

The effect of these clauses depends upon the law of the place where suit is brought. If that place takes the view that the Rules as it has applied them are mandatory— applying to any case before its courts—it may refuse to uphold a clause selecting another forum. If it exercises jurisdiction (whether by or despite the parties’ choice) it will certainly ignore any choice of law clause which attempts to evade its version of the Rules.