2.1 The scope of the Hague-Visby Rules(1) The terms Hague-Visby Rules, the Rules, and the Convention are in this article used interchangeably.
The Hague-Visby Rules contain, in Article 10, the following provision relating to their scope of application:
“The provisions of these Rules shall apply to every bill of lading relating to the carriage of goods between ports in two different States if: (a) the bill of lading is issued in a contracting State, or (b) the carriage is from a port in a contracting State, or (c) the contract contained in or evidenced by the bill of lading provides that these Rules or legislation of any State giving effect to them are to govern the contract; whatever may be the nationality of the ship, the carrier, the shipper, the consignee or any other interested person.”
This reflects the obvious aim of the Rules, namely to create uniform substantive rules to be applied by the contracting states to what is the subject matter of the Rules; bills of lading relating to international carriage of goods by sea – and with the further delineation that the Rules apply if such bills are issued in a contracting state (litra (a)), or if the export port is located within a contracting state (litra (b)).
The content of litra (c) may on its face appear to be a choice of law provision but must be seen within its overall con For the purpose of creating uniform substantive rules, it makes sense to allow private parties to make a contractual choice of national legal systems which give effect to the Rules, even if the relevant state is not a state party to the Rules; the Rules may be implemented unilaterally by the respective state.
Neither of the alternatives in litras (a) to (c) can, in the author’s view, be seen as choice of law provisions as this concept is traditionally understood. Rather, they form an intrinsic part of the substantive law scope of application provision. One could, theoretically, envisage an express choice of law provision as part of the Hague-Visby Rules, stating for example:
“To the extent bills of lading covered by these Rules contain choice of law provisions which refer to the laws of a state which is not party to these Rules and/or which has no legislation implementing the contents of these Rules, such choice of law provisions shall be deemed null and void.”(2) This is reflected in the provision stating that substantive contractual provisions derogating from the Rules are null and void, Article 3, 8.
However, from the point of view of the draftsmen of the Rules, there would be no practical need for such a provision, and it would even appear illogical: State parties to the Rules undertake to implement and apply the Rules within their respective jurisdiction. The choice of governing law to be applied by the courts of the contracting states would therefore follow from the Rules themselves, i.e. their scope provision as implemented into national law.
The point so far has been to point out the essential and simple fact that there is a scope provision in the Hague-Visby Rules which makes them mandatorily applicable to a certain type of contracts (bills of lading relating to international sea carriage) and with connecting factors which establish their scope (the place of issuance of the bill and the port of loading). Moreover, we have seen that the concept of choice of law may, depending on the perspective, be intertwined with that of the scope of application: The Convention allows for contractual choice to the Rules themselves or to the laws of a state which has implemented the Rules without being party to the Convention. Such choice of law may be seen as ‘quasi-choice’, since it all the time operates within the boundaries of the substantive contents of the Rules – in other word, within their scope.
Therefore, by taking Article 10 litra (c) of the Rules as an example, we can see that a ‘quasi-choice’ of law provision is in effect a provision delineating the scope of application of the substantive part of the Rules, and that implicitly any contractual provisions referring to the laws of a state not giving effect to the Rules, must be considered invalid. In consequence, should a state party to the Rules accept such derogation from the Rules by acknowledging contractual choice of law leading to the Rules not being given effect, this would mean that such state party violates its undertaking under the Convention.