MarIus

2.3.1 General considerations

So far we have proceeded on the assumption that the scope provision of national law implementing the Hague-Visby Rules, is essentially the same as the scope provision of the Rules themselves.(1) This would be the case if the Hague-Visby Rules are implemented verbatim, which they often are, as in the English COGSA (Carriage of Goods by Sea Act) 1971. That is, however, not always the case. State parties to the Convention may choose to extend the substantive mandatory regulatory scheme of the Rules beyond the scope of the Rules themselves. Such an extended scheme will then form part of the scope provision of the national law, and the extension may include matters like the type of transport document to be covered by rules; the geographical scope connections of the transport to be covered by the rules; the rules being made applicable not only to international but also to domestic trade, etc.

This type of substantive law extension of the Hague-Visby Rules when implemented into national law, adds to the complexity of our topic. In these situations, national law will not, on the face of the national legislation, distinguish between what are the ‘original’ and what are the ‘extended’ Hague-Visby Rules as promulgated in national law. If, in retrospect, such a distinction has to be made, it will require scrutiny of the history of the relevant national law in order to ‘decipher’ what belongs to the one or the other. Such a task of ‘deciphering’ will in many ways be unfeasible as part of practical adjudication. Nevertheless, we shall see that the need for it comes to light, depending on the choice of law perspective taken by the legislator when implementing Rome I into national law (Section 4).

2.3.2 The complexity of the Nordic Maritime Codes of 1994

We shall illustrate the above point about the ‘original’ and ‘extended’ implementation of the Hague-Visby Rules by looking at the Nordic Maritime Codes as they appeared after an important revision made in 1994. That revision aimed at modernizing the Rules and extending their substantive law protective scheme in favour of the cargo interest. The revision was modelled on the Hamburg Rules,(2) United Nations International Convention on the Carriage of Goods by Sea, adopted in Hamburg in 1978. but without the Nordic states denouncing their status as parties to the Hague-Visby Rules.(3) This meant the retaining of two important substantive provisions of the Hague-Visby: the nautical fault liability exception (the Norwegian Code Section 276) and its limitation rules (Sections 280–281).

In short, the Nordic Codes – after the 1994 revision – comprised the following:

First, the scope of the mandatory rules was extended into the terminal stages, i.e. the port related storage and cargo handling logistics under the control of the carrier, in lieu of the development of containerization in the liner trade.(4) Sections 274 and 275 corresponding to Hamburg Rules Articles 4 and 5. Second, the scope of application was extended from bills of lading to also cover other type of cargo documents, such as waybills, and also mere oral agreements for the carriage of cargo.(5) Section 252 merely mentions “contracts of carriage by sea” (which fall within the otherwise scope of application of the provision), corresponding to Hamburg Rules Article 2. Third, provisions allowed for cargo claims to be brought against the performing carrier (sub-contractor of the carrier) when cargo damage occurred while the goods were in the custody of such performing carrier.(6) Section 286 corresponding to Hamburg Rules Article 10. Such provision was already introduced in the Nordic Codes as part of an earlier revision in 1973, thus serving as inspiration to the Hamburg Rules Article 10. It lies beyond the scope of this article to go into details on the interplay between the Nordic Codes and the Hamburg Rules, but this interplay goes to the root of the – in the author’s view – impractical implications of certain choice of law perspectives, as will be later illustrated. Fourth, the rules were also made applicable to domestic trade, with one particular inter-Nordic feature, in that Norway for its domestic trade disposed of the navigational fault liability exception of the Hague-Visby Rules and raised the limitation amount of the Hague-Visby Rules,(7) As motivated by the multimodal transport situation, which for practical-logistical reasons (car-ferry-car across fjords) may result in a greater need to align the liability rules of the various unimodal regimes in Norway than in the other Nordic states. which is not the case in the Codes of the other Nordic states.

This scheme of the Nordic Codes is therefore a type of hybrid solution, retaining the core of the Hague-Visby Rules while expanding the Codes with much of the substantive rules of the Hamburg Rules, and with some tailor-made inter-Nordic and domestic rules.(8) States like Canada and Australia have done the same, but of particular interest is the regional harmonizing scheme of the Nordic states and its role in choice of law matters, as we shall later see. In the following we shall call this the ‘Hague-Visby surplus system’, in essence signifying the expansion of mandatory substantive protective rules beyond the scope of the Hague-Visby Rules.

Moreover, when implementing this ‘Hague-Visby surplus system’, the legislator saw the need to add jurisdiction provisions to the Nordic Maritime Codes as a means of securing that this ‘surplus system’ was applied to cases which had the appropriate geographical nexus to the Nordic states.(9) Norwegian Maritime Code Section 310 corresponding to Hamburg Rules Article 21. The effect of Section 310 soon became aborted by Norway (and the other Nordic states) becoming party to the Lugano Convention, which essentially provided for freedom of contract with respect to choice of forum – see footnote above. This is in practice an important aspect. However, for the purpose of analyses of choice of law perspectives versus substantive law perspectives, the position on selection of forum is in the principled sense immaterial. Such geographical nexus was therefore significantly extended compared to the corresponding connecting factors of the scope of application provision of the Hague-Visby Rules themselves, in Article 10.(10) The previous Maritime Code Section 169 also had some degree of such inter-Nordic extended connecting factors, but this system was expanded as part of the 1994-Codes, see NOU 1993:36, p. 21.

Furthermore, and as part of the same thinking, a need arose to disallow the type of inter-Hague-Visby choice of law which was allowed under the previous Codes, since the laws of other Hague-Visby states would generally not have in place an increased protective scheme similar to that of the ‘Hague-Visby surplus system’. Therefore, what we above called a ‘quasi-choice’ of the laws of other Hague-Visby states under the pre-1994 Nordic Codes, was now replaced by the law of the forum.(11) Section 252 second paragraph. The fact that the Lugano Convention and (for the EU states) the Brussels I Regulation lead to the jurisdiction of the Maritime Code Section 310 being partly undermined, does not alter the fact that when a Nordic court is seized with jurisdiction over a matter falling within the scope provision of the Code (Section 252), the substantive provisions of the Code apply mandatorily. In other words, the geographical nexus constituting the scope of application of the Codes was aligned with the geographical nexus constituting jurisdiction for application of the Codes.(12) For the sake of completeness it may be mentioned that the idea of inserting a provision for jurisdiction was considered during preparation of the Hague Rules of 1924, but the idea was rejected, see Salmerón Henríquez, Freedom of Contract, Bargaining Power and Forum Selection in Bills of Lading, (Phd Thesis:Doctoral Series 22), Groningen 2016, p. 215.

2.3.3 The ‘quasi choice’ of law provisions of the Nordic Maritime Codes – an account of Section 252

The above system of the Nordic Maritime Codes, which includes what we have called the ‘Hague-Visby surplus system’ and ‘quasi choice’ of law provisions, is generally speaking complex. It lies at the core of what we shall later see has created a fair amount of confusion in connection with choice of law legislation in Sweden and Norway and those countries’ efforts to align the Maritime Code provisions with Rome I (Section 4). In anticipation of that discussion we here give an account of the Norwegian Maritime Code Section 252, to provide an illustration of the various components which are of relevance to our main theme of analyzing a choice of law perspective versus a (substantive law) scope perspective.

Section 252 is entitled ‘Scope of application’. Its first paragraph reads:

“The provisions of this Chapter(13) I.e. the rules contained in the chapter regulating carriage of general cargo (Chapter 13 of the Norwegian Code), not the chapter regulating chartering of ships (Chapter 14), which generally provides for freedom of contract. apply to contracts of carriage by sea in domestic trade in Norway and in trade between Norway, Denmark, Finland and Sweden. In respect of contracts of carriage by sea in domestic trade in Denmark, Finland and Sweden, the law of the State where the carriage is performed, applies.”

The first sentence is a typical scope provision. In that regard it should be recalled what was stated in Section 2.3.2 above: the Code (i.e. Chapter 13 of the Code) is, as a matter of substantive law, a ‘Hague-Visby surplus system’ and that system is made applicable also to domestic trade (which forms no part of the international trade under the Hague-Visby). Moreover, it should be recalled that although inter-Nordic trade is here regulated on a par with domestic trade, inter-Nordic trade is international trade within the meaning of the Hague-Visby Rules, so that – with the Nordic states being parties to those Rules – what is here covered is Hague-Visby trade.

The second sentence clearly contains a choice of law provision, albeit of a ‘quasi choice’ nature, as explained earlier. Its background is that for domestic trade there are (minor) differences between the contents of the Nordic Codes,(14) The Norwegian Code having forfeited the navigational fault exception and raised the limitation amounts of the Hague-Visby Rules, see Section 2.3.2. so that if a case involving domestic trade in one Nordic state were to be brought before the courts of a different Nordic state, then the law of the state where the domestic trade occurred, shall apply. This restricted choice is therefore of a ‘quasi-nature’; it operates all the time within the confines of the scope provision of the Nordic Codes. Moreover, it makes sense with such an ‘allocation of choice’ to the respective domestic law, in view of the mandatory nature of the Nordic Codes: disputes which are mandatorily regulated should be regulated by the ‘correct’ mandatory scheme, i.e. the mandatory scheme of the respective domestic law of the relevant Nordic state. It would, practically and policy-wise, not make sense to allow for contractual choice to the laws of e.g. a non-Hague-Visby state in a Norwegian domestic law dispute appearing before e.g. a Swedish court.

Section 252 second paragraph reads:

“In other trades the provisions apply to contracts of carriage by sea between different States, if:

1. the agreed port of loading is in a Convention State,

2. the agreed port of discharge is in Norway, Denmark, Finland or Sweden,

3. several ports of discharge have been agreed and the actual port of discharge is one of these and is situated in Norway, Denmark, Finland or Sweden,

4. the transport document is issued in a Convention State,

5. the transport document states that the Convention or the law of a Convention State based thereon shall apply.”

By ‘other trade’ is intended trade other than inter-Nordic and domestic trade, and essentially refers to trade between Hague-Visby states, but it is again important to note that inter-Nordic trade is also Hague-Visby trade, so that as for the inter-Nordic trade, the second paragraph is, con-tent-wise, an overlap with the first paragraph.

Moreover, this second paragraph implements the scope provision of the Hague-Visby Rules Article 10 through numbers 1), 4) and 5). Numbers 2) and 3) are ‘add-on’s’ to cater for the ‘Hague-Visby surplus system’ applicable to cases with the appropriate Nordic connecting factors.(15) NOU 1993:36 p. 20: “The mentioned first four factors have such a Nordic connection that the provisions in the chapter concerning carriage of general cargo ought to become applicable irrespective of the parties having agreed otherwise […]” (author’s translation). This is a clear statement to the effect that the legislator’s intent is that what we call the scope perspective overrides whatever choice of law perspective, which we shall later come back to. Such connecting factors were also partly inserted in the earlier version of the Maritime Code, Section 169, which was at that time already extended compared to the scope provision of the Hague-Visby Rules, but such connecting factors became further expanded in the 1994 Code, see NOU 1993:36 p. 21. It is worth noting that number 3 is taken from Hamburg Rules Article 2 litra c). It is important to note that with the somewhat remote or arbitrary connecting factors to the Nordic states, as in numbers 4) and 5), it is nevertheless the extended ‘Hague-Visby surplus system’ of the Code that applies, not that of the (original) Hague-Visby Rules, which – as a matter of legislative technique – would be impractical to achieve.

Section 252 third paragraph reads:

“If neither the agreed place of loading nor the agreed or actual place of delivery is in Norway, Denmark, Finland or Sweden, the parties may nevertheless agree that the contract of carriage by sea shall be subject to the law of a Convention State.”

This is, again, an example of what we have called ‘quasi choice’ of law. If a given case does not have the geographical connecting factors to the Nordic states, which in practice would mean numbers 4) and 5) of the second paragraph, then there is room for party autonomy within the confines of the Hague-Visby Convention.

Moreover, it should be mentioned that Section 252 seems not to be exhaustive as a scope provision, since it is conceivable that the contracting parties have chosen Norwegian law to apply in a case involving carriage of goods, but without the case having the connecting factors stipulated in Section 252 second paragraph. In that case it is unresolved whether the provisions of the Code are to be applied mandatorily or non-mandatorily. Probably the latter would be the case, on the rationale that there is no statutory basis for applying the rules mandatorily in such a situation.