3.5 Article 5
Article 5 is also worth discussing. This provision regulates the choice of law in contracts of carriage which do not contain express choice of law provisions. This is at the periphery of our interest, since primarily we look at situations where contracts do contain choice of law provisions, and how such choice fares within the ambit of the Hague-Visby Rules and corresponding national legislation.
It should, however, be clear that to the extent national regulation implementing the scope of the Hague-Visby Rules, sets aside contractual choice which deviates from it, then the same must apply to contracts which do not contain choice of law provisions. In other words, contracting parties cannot be granted a greater ‘liberty’ (by invoking Rome I Article 5) by not agreeing upon choice of law than by agreeing upon it. In this respect Article 5 must be seen in conjunction with Article 25: if the latter gives room for exempting the Hague-Visby Rules from the application of Rome I,(1) As is the position taken by the Swedish legislator, Section 4.2. then this means that Article 5 is also rendered inapplicable.
One could perhaps ask whether Article 5, through its connecting factors, could retain its role of determining the choice of law within the scope of the Hague-Visby Rules. But that would generally not work, since such connecting factors are already contained in national legislation implementing the Hague-Visby Rules; they constitute what we have called ‘quasi choice’ of law.(2) See Section 2.3.3 These ‘quasi choice’ provisions of national legislation implementing the Hague-Visby Rules, would ‘clash’ with the choice of law connecting factors of Article 5.(3) Article 5 states that the applicable law shall be that of the habitual residence of the carrier ”provided that the place of receipt [load port] or place of delivery [discharge port] or the habitual residence of the consignor [cargo owner] is also situated in that country”. Already here we see that these criteria are not aligned with those of the Hague-Visby Article 10, where there are other (additional) connecting factors which bring the substantive mandatory rules of the Convention into play, for example the place of issuing of the transport contract (bill of lading). If we look at the corresponding implementation provision of the Nordic Maritime Codes, there are further, and alternative, connecting factors which are not aligned with those of Rome I Article 5. Article 5 goes on to state: “If those requirements are not met, the law of the country where the place of delivery [discharge port] as agreed by the parties, shall apply.” Also this is out of line with the Hague-Visby Rules, and constitutes only one out of several factors in the Maritime Codes, see Norwegian Maritime Code Section 252 as discussed in Section 2.3.3 above. In other words, the connecting factors of a system for harmonizing choice of law (Rome I), and the factors delineating the scope of application of a mandatory substantive regulatory regime (Hague-Visby), are not the same. They serve different purposes within their respective regimes.
A general observation is that given the prevalence of the Hague-Visby Rules among several EU states, it is surprising that this ‘clash’ between regulatory systems is not addressed within the context of Rome I Article 5,(4) Another observation is that such important shipping contracts as time charterparties seem not be covered by what appears to be intended as an exhaustive provision for choice of law in contracts of carriage in Article 5. Time charterparties do not have any discernable and/or singular “place of receipt or place of delivery” (of cargo). Those places alter, for example during a five year charter for worldwide trading. It may be that only the relationship between cargo owners and carriers is intended to be regulated by Article 5, and that time charterparties are envisaged to be falling within the category of service for hire, or similar. This does, however, not detract from the general observation that Rome I seems to be taking a piecemeal approach to contracts of carriage.in the same way as it seems not to be addressed within the context of other provisions, such as Article 25. This adds to our general point that important perspectives seem to have been ignored or lost in the drafting of Rome I, the ramification of which is further illustrated below.