3.3 Article 9
The next provision of relevance is Article 9 which states: “Nothing in this Regulation shall restrict the application of the overriding mandatory provisions of the law of the forum.”
Such overriding mandatory provisions are defined as “provisions the respect of which is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organization, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the contract under this Regulation.”
In other words, such provisions of the law of the forum have the effect of setting aside deviating rules of the law contractually chosen by the parties, in the same way as we have seen under Article 3.3.
It may then be asked whether mandatory substantive rules of states parties to the Hague-Visby Rules constitute such ‘overriding mandatory provisions’. As a matter of first impression, that seems in the author’s view not to be the case. The somewhat obsolete Hague-Visby system of liability exceptions for navigational fault, combined with the fairly low limitation amounts, hardly deserves such a characterization. From a Nordic perspective this is underscored by the fact that the ‘Hague-Visby surplus system’ was adopted essentially to improve on what was perceived as shortcomings of the Hague-Visby Rules.(1) As explained in Section 2.3. It seems therefore clear that if one were to derive an intention from the Nordic legislators at the time (in 1994), it would be the ‘Hague-Visby surplus system’, not the (original) Hague-Visby Rules that deserve this characterization. The point is also underscored by the fact that both the Hamburg Rules and the Rotterdam Rules(2) UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, enacted in Rotterdam 2009. The Convention has not entered into force. have considered the navigational fault exception of the Hague-Visby Rules to be obsolete.
However, the prevalence and harmonizing effect of the Hague-Visby Rules may perhaps in and of itself, irrespective of the Rules’ obsolete substantive nature, be seen as meeting the criteria of ‘safeguarding public interest’. We shall see that the Swedish choice of law legislator takes that view in respect of the Swedish Maritime Code being based on the Hague-Visby Rules, and the same view seems to be held under English law in respect of the UK COGSA 1971.(3) Yvonne Baatz, in Yvonne Baatz et al, Maritime Law, Sweet & Maxwell, 2011, p. 60.
To this should be added that the mentioned substantive law harmonizing effect of the Hague-Visby Rules is, naturally, restricted to the scope of the Rules themselves. In the UK the Hague-Visby Rules are implemented virtually verbatim into the COGSA 1971, thereby rendering the impact of Article 5 and its ‘overriding mandatory provisions’, unproblematic.
With respect to the Nordic states this becomes more complex due to the ‘Hague-Visby surplus system’ of the Nordic Maritime Codes, as previously discussed. This substantive law ‘surplus’ of the Nordic Codes is, clearly, not of the same international prevalence as the Hague-Visby Rules themselves.(4) We have seen that this ‘surplus system’ is essentially taken from the Hamburg Rules but this Convention does not enjoy the same prevalence as the Hague-Visby Rules, which means that the Hamburg Rules might be treated differently under Rome I Article 9 than the Hague-Visby Rules. We shall, however, see that this has caused little concern to the Swedish choice of law legislator, who has managed to retain this ‘surplus system’ of the Swedish Maritime Code on the rather formalistic grounds that this ‘surplus system’ is of a substantive law nature, thus falling outside the mandate of choice of law legislation.(5) Section 4.2 below. The Swedish scholar Jonas Rosengren takes a different view. In Lagval, jurisdiktion og skiljedom vid sjötransportavtal (‘Choice of law, jurisdiction and arbitration in contracts for sea carriage’), JT, 2013-14 No. 1 pp. 66 et seq (p. 72), he submits that only the original Hague-Visby Rules should be granted the status of ‘overriding mandatory provisions’, also under Swedish law. That view would, however, require the impractical task of ‘deciphering’ the Maritime Code to trace its historic roots.