3.3 Approach to construction illustrated by the Australian High Court case, the Bunga Seroja
A further example which illustrates important methodological aspects when construing the HVR can be taken from the Australian High Court(1) The Australian High Court in effect means the Supreme (federal) Court. The case concerned an appeal from the Supreme Court of New South Wales. in the Bunga Seroja(2) Lloyd's Rep. 1999, 1, 512.from 1999.
In his leading speech, Lord Gaudron stated:
"In understanding the operation of the Hague Rules,(3) Which in our context makes no difference from the HVR. there are three important considerations. The rules must be read as a whole, they must be read in the light of the history behind them, and they must be read as a set of rules devised by international agreement for use in contracts that could be governed by any of several different, sometimes radically different, legal systems. It is convenient to begin by touching upon some matters of history."(4) Para. 9.
Elsewhere, Lord Gaudron stated: "Because the Hague Rules are intended to apply widely in international trade, it is self evidently desirable to strive for uniform construction of them."(5) Para. 38.
That case concerned the concept of perils of the sea, which is of no direct relevant to our Sunna-related topics.(6) Perils of the sea belong to the so called Catalogue; HVR art. IV a)-q), see for a background to why this part was taken out in the Norwegian (and Nordic) legislation, Solvang (2021) pp. 57-58 and 93 (in small print). See for a broader account of the legislative policy behind the MC and its relation to the HVR (and the Hamburg Rules), Solvang (2020) p. 158 et seq, at pp. 167-174. But it is worth noting that after reviewing the historical part of the Rules, the Court dealt, under separate headings, with first, "The Hague Rules as an international agreement", second, "Reading the Hague Rules as a whole", and third, "Uniform construction".
Under this last point the Court reviewed American, Canadian, English, German and French case law.(7) Paras. 43-48. That is noteworthy, since one could expect that the Court confined its review to (other) common law systems. That was not the case. German and French law belong to the civil law tradition. This point about legal traditions was expressly addressed (by Lord Kirby):
"[The need for uniform harmony] is the reason why it would be a mistake to interpret the Hague Rules as a mere supplement to the operation of Australian law governing contracts of bailment. That law, derived from the common law of England, may not be reflected in, or identical to, the equivalent law governing carriers' liability in civil law and other jurisdictions. The Hague Rules must operate in all jurisdictions, whatever their legal tradition."(8) Para. 138.
Moreover, caution was raised against letting construction of the Rules become influenced by domestic law principles. Lord Kirby stated:
"Reflecting on the history and purpose of the Hague Rules, the Court should strive, so far as possible, to adopt for Australian cases an interpretation which conforms to any uniform understanding of the rules found in the decisions of the Courts of other trading countries. It would be deplorable if the hard won advantages, secured by the rules, were undone by serious disagreement between different national Courts."(9) Para. 137 - my emphasis.
It seems clear that this statement of intended harmony "secured by the rules", envisages the rules themselves being essential, structurally and otherwise, as the respective nations' adoption of the HVR, a point which is entirely lost in the Norwegian Supreme Court's approach to the Sunna.
Moreover, these methodological statements made in the Bunga Seroja were referred to with approval by the New Zealand Supreme Court in the Tasman Pioneer (above). English cases concerning construction of the HVR contain similar statements of approach involving foreign law.(10) See e.g. the Jordan II, 2005, 1, WLR 1363, and the Libra (below).