Lloyd's Maritime and Commercial Law Quarterly
Bull’s eyes or broad principles? Modern treaty interpretation and the sea-carriage Conventions
Simon Rainey *
This paper considers to what extent the English Court adopts a special approach to the interpretation of the Hague and Hague-Visby Rules, rather than one of systematic adherence to the principles of the Vienna Convention on the Law of Treaties 1969, in the light of the recent and continuing crop of cases at appellate level on the Rules. It concludes that, while the Rules have hitherto attracted their own special approach, recent cases may demonstrate a more rigorous and systematic approach to the construction of the Rules, applying a staged process in accordance with Arts 31 and 32 of the Vienna Convention and, in particular, a more sensitive reading of Art.32 closer to the flexible international law approach to the use of “supplementary means of interpretation” (travaux préparatoires) in treaty interpretation.
The Hague and Hague-Visby Rules are so much a part and parcel of an English shipping lawyer’s life, that in the day-to-day handling of the Rules in cargo claims, one may lose sight of the fact that they are international treaties and as such attract, or arguably should attract, the ordinary application of principles of treaty interpretation when a question arises as to what they mean. Yet it is doubtful how many shipping lawyers have on their bookshelf the textbooks on treaty interpretation (for example: Gardiner,1 Sinclair2 or McNair3) which are often referred to in cases on other, non-maritime Conventions.
This paper considers, especially with regard to recent case law, to what extent the English Court’s techniques in interpreting the Hague and Hague-Visby Rules correspond to or are shaped by general treaty interpretation principles, as now enshrined in the Vienna Convention on the Law of Treaties 1969.
* QC, Quadrant Chambers; Deputy High Court Judge (Commercial Court); Honorary Professor of Business, Economics and Law, University of Swansea; Visiting Research Fellow, Institute of International Shipping and Trade Law, University of Swansea.
1. Richard Gardiner, Treaty Interpretation, 2nd edn (Oxford, 2017) (“Gardiner”).
2. Ian Sinclair, The Vienna Convention on the Law of Treaties, 2nd edn (Manchester, 1984).
3. Lord McNair, The Law of Treaties, 2nd edn (Oxford, 1961) (“McNair”).
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