Lloyd's Maritime and Commercial Law Quarterly
Breaking the Hague-Visby Rules’ silence on choice of law and forum clauses: Article 3 revisited
Shane Herbst * and Simon Allison †
It is generally assumed that the Hague-Visby Rules are silent on choice of law and forum clauses. However, Art.3(8) can potentially operate to invalidate such clauses; and the general assumption is challenged by reference to Australia’s cargo liability regime. This reality could incentivise jurisdictions wanting to uphold such clauses to construe the Hague-Visby Rules uniformly. Despite this, the limits of Art.3(8) should be clarified. In Australia, reform efforts should address this and other issues with arbitration agreements. As Art.3(8) currently stands, parties must consider its potential effects on dispute resolution provisions in sea-carriage documents.
Introduction
The Hague-Visby Rules sought to harmonise inconsistent cargo liability regimes which were causing the shipping industry unnecessary complexity and uncertainty.1 They have been widely adopted and are generally accepted to be silent on choice of law and forum clauses in agreements that the Hague-Visby Rules govern.2 In Australia, the Hague-Visby Rules are given effect by the current iteration of a cargo regime designed to safeguard the interests of Australian shippers, the Carriage of Goods by Sea Act 1991 (Cth) (“COGSA 91”).3 In 2022, the Full Court of the Federal Court of Australia4 in The BBC Nile
5 alluded to various ways that Art.3(8) of the Hague-Visby Rules can be used to invalidate a choice of foreign law or forum. The decision leaves unanswered questions as to the potential interaction of Arts 3(2) and 3(8) of the Hague-Visby Rules, as amended6 in Sch.1A of
* Lawyer, Corrs Chambers Westgarth, Perth, Australia.
† Associate Lecturer, Faculty of Business and Law, Curtin University, Perth, Australia. The authors would like to thank John Minas, Stephanie Jewell, Axel Landin and John Willers for their comments on earlier drafts.
1. Protocol to Amend the International Convention for the Unification of Certain Rules Relating to Bills of Lading (opened for signature on 23 February 1968) (“Hague–Visby Rules”). The Hague-Visby Rules full title plainly reflects this intention.
2. Simon Allison, “Choice of Law and Forum Clauses in Shipping Documents: Revising Section 11 of the Carriage of Goods by Sea Act 1991 (Cth)” (2014) 40 Monash ULR 639, 642.
3. Carriage of Goods by Sea Act 1991 (Cth) (“COGSA 91”), Sch.1.
4. Comprised of Rares, Derrington and Stewart JJ. Justice Rares’ extrajudicial writing is cited extensively below.
5. Carmichael Rail Network Pty Ltd v BBC Chartering Carriers GmbH & Co KG (The BBC Nile) [2022] FCAFC 171; 406 ALR 431; noted C Bozzi [2023] LMCLQ 370. The decision is being appealed to the High Court.
6. Such amendments by domestic legislatures further detract from the potential for a globally uniform cargo liability regime.
Breaking the Hague-Visby Rules’ silence on Choice of Law
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