Jurisprudence on maritime conventions a cmi project to which your assistance is required
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- THE SALVAGE CONVENTION 1910
- Salvage services rendered against the prohibition of the owner (Art. 3)
- THE 1910 COLLISION CONVENTION
- Allocation of liability (art. 4) United States
- Joint liability – Apportionment of fault (art. 4) France
- Legal presumptions of fault (art. 6) United States
- Time for suit (art. 7) France
- Hong Kong Special Administration Region
- THE 1924 BILLS OF LADING CONVENTION AND ITS 1968 AND 1979 PROTOCOLS (HAGUE-VISBY RULES)
- Action for indemnity (Art. 3(6 bis)) France
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JURISPRUDENCE ON MARITIME CONVENTIONS - A CMI PROJECT TO WHICH YOUR ASSISTANCE IS REQUIRED INTRODUCTION In order to ensure uniformity by way of international legislation three subsequent steps are required: a) Adoption of an international convention on a given subject b) Appropriate implementation of the convention c) Uniform interpretation of the convention Information on the technique adopted by States parties to a convention for its implementation will help the Depositary of the convention, States parties, courts and lawyers to establish the extent to which legislative uniformity has been achieved. Information from various countries on judgments in which a convention or its national enactment is considered, interpreted and applied will indicate whether its interpretation is uniform or not and may also contribute to increased uniformity in the future. Similarly, information on commentaries in text books, law journal articles and the like of a convention, its implementation and judgments issued in respect of a convention, may be of assistance to judges and lawyers. Our project is to contribute to uniformity by collecting and publishing information about the implementation and interpretation of international maritime conventions on a national level. In order to collect the necessary information from various jurisdictions, we will rely primarily on the assistance of judges, academics, civil servants, practising lawyers and interested persons generally. You are therefore kindly invited to provide relevant information in English to Francesco Berlingieri at slb@dirmar.it Associations, organizations and publishers are of course also invited to provide information. Publication by us of any information supplied will normally be with attribution to our source as well as with customary reference to case, book, article etc. MANNER OF CONTRIBUTION In order to ensure consistency in the information specimens are provided. Click here for more information. However, we emphasize that if for want of time or otherwise you are unable to submit information in the requested format, please supply the information in whatever form or language the circumstances permit. Some information is obviously better than no information and we will hopefully be able to supplement with information from other sources A DATABASE of decisions by national Courts on the interpretation of maritime conventions has been established on the CMI website. Its purpose is to make available to judges, lawyers, academics and to the industry, as many judgments as possible from as many Courts situated in as many countries as possible, on the interpretation of maritime conventions, in the hope that that will contribute to their uniform interpretation. The database is structured with reference to each convention and then for each convention with reference to individual subjects, listed in an alphabetical order, with the indication of the relevant article. For each judgment there are indicated the country, the judicial authority, the date of the judgment, the names of the parties and the journal where the judgment has been published. There follows a summary of the facts and the head notes. At present the database contains summaries of judgments that relate to the following Conventions: •The Salvage Convention 1910 •The 1910 Collision Convention •The 1924 Bill of Lading Convention and its 1968 and 1979 Protocols (Hague-Visby Rules) •The 1926 Convention on Maritime Liens and Mortgages •The 1952 Arrest Convention •The CLC 1969-1992 •The Fund Convention 1971-1992 •The Limitation Convention (LLMC) 1976 •The 1976 Athens Convention on The Carriage of Passengers and their Luggage by Sea •The Hamburg Convention 1978 (Hamburg Rules) •United Nations Convention on the Law of the Sea, 1982 •SUA Convention 1988 •The Salvage Convention 1989 THE SALVAGE CONVENTION 1910 •Right to reward •Salvage services rendered against the prohibition of the owner (Art. 3) ------------------------------------------------------------------------------------------------------------- Right to reward (Art. 2) United States United States of America et Al. v. Ex. USS “Cabot/Dedalo”, United States Court of Appeals for the Fifth Circuit 1 July 20002 (2002 AMC 1974) In 1997 the m/v "Tours Future", when steaming down river along the Mississippi, allided with the former light aircraft carrier U.S.S. "Cabot", moored on the east bank of the Mississippi at the Press Street wharf in New Orleans. The "Cabot" after being decommissioned, had been sold to Spain and renamed Dedalo. In 1999 she had been purchased by the U.S.S. "Cabot" Dedalo Museum Foundation, Inc. and moved to New Orleans. After the allision the Coast Guard, that sometime before had ordered the Foundation to move the "Cabot" to a safer berth, issued another order under 33 U.S.C. Chapter 25, requesting the Foundation to hire a tug to stand by the "Cabot" and, within three days, to move her to a safe hurricane mooring site. Since the Foundation did not take any action, the Coast Guard notified the Foundation that it would do so in accordance with the relevant provisions of the Federal Water Pollution Control Act (FWPCA). The total cost involved was US$ 500,868.94. Later that year the "Cabot" was sold and moved to Port Isabel, Texas where wharfage and security services were provided to her by Marine Salvage & Services, Inc. and, when she began to list, that company acted to prevent her from capsizing at a cost of US$ 20,908. The "Cabot" was arrested by various claimants and sold by the U.S. Marshal for US$ 185,000, about half of which was paid to her custodian. Following a trial to determine the priority and amounts of the liens, the Southern District Court of Texas held that Marine Salvage had a valid salvage lien of US$ 20,908 with priority over a valid salvage lien of the U.S. Government which in turn was entitled to the balance of US$ 70,342.68. Marine Salvage appealed, contending first that the Coast Guard could not make a salvage claim for the actions it took under the authority of the FWPCA.
•Joint liability – Apportionment of fault (art. 4) •Legal presumptions of fault (art. 6) •Time for suit (art. 7) ------------------------------------------------------------------------------------------------------------- Allocation of liability (art. 4) United States Otal Investments Limited v. United Services Automobile Association, and Others M.V. “Clary” and Others and M.V. “Tricolor”, U.S. Court of Appeals-II Circ. 6 July 2007 Before dawn on December 14, 2002, three vessels, the M/V Kariba (the “Kariba”), the M/V Tricolor (the “Tricolor”) and the M/V Clary (the “Clary”) were navigating a Traffic Separation Scheme (“TSS”) in international waters north of Dunkerque, France (in the English Channel). At the relevant point of the TSS, two branches intersect at approximately right angles, one branch cutting roughly North-South, the other roughly East-West. On the night in question, the fog was thick and visibility was low. The Kariba was proceeding westward at about 16 knots. The Tricolor was also proceeding westward at 17.9 knots, one-half mile to the starboard aft of the Kariba, and in the process of gradually overtaking her. At the same time, the Clary was moving northward, along the intersecting branch of the TSS, at 13 knots, on a collision course with the Kariba. Noticing that it was on a collision course, the Clary planned to turn starboard and steer astern of the Kariba. Before the Clary began to turn, however, the Kariba initiated its own evasive manoeuvre. The Kariba, seeking to avoid a collision with the Clary – and perhaps unaware of the proximity of the Tricolor – made an abrupt turn to starboard. The Kariba struck the port side of the Tricolor, rending the Tricolor’s hull below its bridge. The Tricolor along with its cargo then sank. There were no human casualties. In the quarter-hour leading up to the collision, none of the vessels sounded its foghorn or communicated with any other vessel via radio. In June 2003, Otal Investments, Ltd., the owner of the Kariba (hereinafter, Otal and the Kariba together the “Kariba”), filed a complaint in the Southern District of New York “seeking Exoneration from or Limitation of Liability.” In response to this complaint, numerous claimants filed claims against the Kariba, seeking damages for the loss of their cargo, which had sunk along with the Tricolor (hereinafter, the claimants will be called the “cargo owners”). Meanwhile, the Kariba impleaded the Clary and the Tricolor as third-party defendants. The Kariba and the cargo owners settled their disputes before trial, and the Tricolor agreed to resolve its disputes against the Kariba in Belgium. For the district court, this left only the disputes between the Kariba and the cargo owners, on the one side, and the Clary and the Tricolor, on the other. After a bench trial, the court ruled in favor of the Clary and the Tricolor, finding the Kariba to have been the sole cause of the collision. All parties agreed the substantive law governing this case derived from treaties ratified by the vessels’ flag states. Specifically, the navigational duties are contained in The International Regulations for Preventing Collisions at Sea (the “COLREGS”). In addition, the parties stipulated their claims should be adjudicated “in accordance with” the Brussels Convention for the Unification of Certain Rules of Law with respect to Collisions between Vessels, 1910 (the “1910 Collision Convention”). The district court found the rule in The Pennsylvania did not apply in this case. Generally,” the court held, “United States courts will apply the 1910 Collision Convention when a collision occurs in international waters between vessels that fly flags of signatory states.” In re Otal Investments, Ltd., 2005 U.S. Dist. LEXIS 21580 at *6. Article 6 of that Convention states “[a]ll legal presumptions of fault in regard to liability for collision are abolished.” If the rule in The Pennsylvania is substantive, the court noted, Article 6 of the Convention would override it. Id. at *8. Both the Kariba and the cargo owners appealed from this judgment, seeking a reversal of the district court’s determination that the Kariba was solely liable. The Clary and the Tricolor sought to preserve that decision. Appellants the Kariba and cargo owners argued that while substantive law was governed by the 1910 Collision Convention, procedural law was governed by the law of the forum and that, therefore, the Pennsylvania Rule applied, since it its nature was procedural. After deciding that the Pennsylvania Rule is substantive, the Court of Appeals considered the allocation of liability under the 1910 Collision Convention. Held, by the U.S. Court of Appeal-II Circ., that: [1] Article 4 of the 1910 Collision Convention, which allocates liability “in proportion to the degree of the faults respectively committed,” requires consideration of both culpability and causative effect. Joint liability – Apportionment of fault (art. 4) France Tribunal de Grande Instance of Sables d’Olonne 7 January 2011, At Racing LLP v. Armement Coopératif Artisanal Vendée, 2011 DMF 607 The sailing yacht “Black Sambucca”, that intended to participate to the regatta around the world with departure from Sables d’Olonne on 17 October 2008, arrived in the roads of Sables d’Olonne in the evening of 16 October and remained in the road heaving to in order to enter into the port the following morning. In the night, at about 03.40, the fishing vessel “Anthineas” ran into the yacht causing serious damage to her hull and breaking the mast. On 20 August 2009 the owners of the “Sambucca”, AT Racing LP, brought proceedings against the owners of the “Anthineas”, José Jouneau and Armement Cooperatif Artisanal Vandée, and their insurers claiming damages. Held, by the Tribunal de Grande Instance of Sables d’Olonne, that: [1] A collision of a fishing vessel with a sailing yacht that was heaving must be deemed to have been caused by the fault of both vessels when they both failed make signals to attract the attention of the other vessel and pursuant to art. 4 of the 1910 Collision Convention liability must be apportioned equally. Legal presumptions of fault (art. 6) United States Otal Investments Limited v. United Services Automobile Association, and Others M.V. “Clary” and Others and M.V. “Tricolor”, U.S. Court of Appeals-II Circ. 6 July 2007 (The summary of facts may be found in the section “Allocation of liability”) Held, by the U.S. Court of Appeal-II Circ., that: [1] The rule in The Pennsylvania is not a mere procedural rule; it is, instead, substantive. The question of whether a rule is procedural or substantive depends on its effect at trial. Under the rule in The Pennsylvania, a vessel that violates a navigational rule not only must show that her fault did not cause the collision, but also must persuade the court that her own explanation of the collision is correct. This is an imposing burden. It does not serve simply to determine who moves forward with the evidence, or to narrowly regulate the conduct at trial. To the contrary, the rule in The Pennsylvania is so significant as to substantially “affect the decision of the issue” of liability in a collision. Moreover, the purpose of the rule in The Pennsylvania extends beyond regulating evidentiary burdens at trial. As its author, Justice Strong, proclaimed, the rule “is necessary to enforce obedience to the mandate of the statute” (The Pennsylvania, 86 U.S. at 136), an aim that exceeds mere evidentiary concerns. Time for suit (art. 7) France Cour de Cassation 7 April 2011, Mr. P. v. Mr. L. (2011 DMF 707) On 11 July 2006 a collision occurred between the yacht Le Georgina II, at anchor and the fishing vessel Le Jean Ricciardi. The yacht was damaged and Mr. P. who was on board, fell into the water and was rescued by a sailor of Le Jean Ricciardi. On 15 July 2009 Mr. P. brought an action against Mr. L., the owner of Le Jean Ricciardi in the Tribunal de Grande Instance of Montpellier. The defendant rejected the claim holding that it was time barred pursuant to article 7 of law no. 67-545 of 7 July 1967, the action having been brought over two years of the occurrence. By judgment of 10 May 2010 the Tribunal de Grande Instance rejected the exception and held the defendant fully liable for the accident. Mr. L. appealed and having Mr. P. objected that the two year prescription period was in conflict with the rights and liberties warranted by the Constitution, and specifically with article 16 of the “Déclaration des droits de l’homme et du citoyen” of 26 August 1789, asking that the issue be submitted to the Cour de Cassation. By judgment of 19 January 2011 the Cour d’Appel of Montpellier transmitted the issue to the Cour de Cassation. Held, by the Cour de Cassation, that: [1] The rule of article 7 of law no. 67-545 of 7 July 1967 on “événements de mer” that has become article L.5131-6 of the code des transports providing a two years prescription period in respect of claims arising out of a collision does not entail an unjustified distinction such as to deprive a person of the warranties of the law and there is no basis for the submission of the issue to the Conseil Constitutionnel.* *This decision of the French Cour de Cassation, albeit considering a domestic law, has an international interest for the two years prescription (time bar) period is based on article 7 of the Collision Convention of 1910, still in force in many maritime States and the same prescription period may be found in many subsequent maritime conventions, such as the 1989 Salvage Convention (article 23) and the 1974 Athens Convention on Carriage of Passengers by Sea (article 16). Hong Kong Special Administration Region Chan Kwai Ha v. Wong Chick Bun, Court of Appeal 1 February 2008 In August 1999 Ms. Chan’s barge (the Tow) sank while being towed by Mr. Wong’s vessel (the Tug). In April 2005 Ms. Chan issued a writ against Mr. Wong claiming damages for the loss of the Tow. The writ alleged breach of contract on the part of Mr. Wong and/or negligent navigation and/or management of the Tug. In his Defence, Mr. Wong contended that Ms. Chan’s claim was time-barred by reason of Merchant Shipping (Collision Damage Liability and Salvage) Ordinance (Cap.508) section 7(1). The High Court of Admiralty heard the time-bar question as a preliminary issue. It held that there was no good reason for extending the limitation of two years imposed by the Ordinance and that Ms. Chan was thus out of time in bringing her action. Ms. Chan appealed against this determination on the ground that, on its true construction, section 7(1) only applied to tortious claims and that the claim for breach of contract (arising from alleged negligence in navigation of the Tug) should therefore be allowed to proceed on the basis that the appropriate limitation period was 6 years (under the Limitation Ordinance (Cap. 347)). Held, by the Court of Appeal, that [1] There is nothing in Article 7 of the Collision Convention, 1910 to suggest that the “actions for the recovery of damages” mentioned in the Article are confined to tortious actions. On the contrary, the words are general. They indicate that all actions for recovery of damages in collision cases are barred after the lapse of two years from a casualty. THE 1924 BILLS OF LADING CONVENTION AND ITS 1968 AND 1979 PROTOCOLS (HAGUE-VISBY RULES) •Action for indemnity (Art. 3(6 bis)) •Amount recoverable (Art. 4. 5(b)) •Bills of lading (Art. 1 (b)) •Burden of proof (Art. 3.(1)-(2); Art.4.(1)-(2)) •Cargoworthiness (Art. 3. 1(c)) •Dangerous goods (Art. 4. 6) •Deck cargo (Art. 1(c)) •Delay (Art. 3.2) •Due diligence (Art. 3.1) •Duty to load and discharge the cargo (Art. 3 (2)) •Entry into force of the 1968 and 1979 Protocols (Art. 13 of the 1968 Protocol and Art. VIII of the 1979 Protocol) •Evidentiary value of the bill of lading (Art. 3. 4) •Excepted perils – Act of public enemies (Art. 4. 2(f)) •Excepted perils – Actual fault or privity (Art. 4. 2(q)) •Excepted perils - Arrest or restraint of princes (Art. 4.2(g)) •Excepted perils – Burden of proof (Art. 4.2) •Excepted perils – Fault in navigation or management of the ship (art. 4.2 (a)) •Excepted perils – Fire (Art. 4.2 (b)) •Excepted perils – Inherent vice (Art. 4. 2(m)) •Excepted perils – Insufficiency of packing (art. 4(2)(n) •Excepted perils - Latent defects (Art. 4.2(p)) •Excepted perils – Perils of the Sea (Art. 4. 2(c)) •Excepted perils – Seaworthiness as an “overriding obligation” (Art. 4. 2) •Excepted perils – When may be invoked (art.4(2)) •Freedom of contract (art. 7) •Identity of the carrier (Art.1(a)) •Jurisdiction Clause (Art. 3. 8) • Limitation of liability (Art. 4.5) •Loss of right to limit liability (Art. 4 5(e)) •Management of the ship and management of the cargo (Art. 4. 2(a) •Multimodal transport •Negligent stowage (Art. 3.2) •Notice of loss or damage (Art. 3.6) •Obligation to make the ship seaworthy (Art. 3. 1) •Obligation to properly care for the goods (Art. 3.2) •Paramount clause •Period of application (Art. 1(e)) •Qualifying clauses (Art. 3. 3) •Right of suit •Scope of application (Art. 1 (b) and (e)) •Scope of application (arts. 2 and 4)) •Scope of application - Claim by a third party (Art. 3(6 bis)) •Scope of application (Art. 10) •Scope of application - Claims against the shipper •Scope of application - Claim of a shipper against another shipper •Servants or agents (Art. 4 bis. (2)(a) and 4 bis (2) and (4). •Stowage on deck •Time bar (Art. 3.6) •Time for suit (Art. 3. 6) •Tort claims (Art. 4 bis . (1)) ------------------------------------------------------------------------------------------------------------- Action for indemnity (Art. 3(6 bis)) France Cour de Cassation (Ch. Com) 15 March 2005, M.me Maurel v. M. Tessah, Panalpina France Transports Internationaux and Delmas (2005 DMF 536) M. Tessah purchased from Mrs. Maurel a press for delivery at Douala. Mrs. Maurel requested Panalpina France Transports Internationaux to perform the carriage for delivery of the press at destination by 14 January 1998 and Panalpina sub-contracted the carriage to Delmas. Since the press never arrived at destination the buyer brought an action against the seller for the avoidance of the contract. The seller on 22 November 1999 brought an action for indemnity against Panalpina and Delmas. The Tribunal de Commerce in which the action was brought and then the Cour d'Appel of Toulouse with judgment of 13 June 2003 declared the contract discharged but rejected the actions against Delmas on the ground that it had been brought after the lapse of the one year time limit. Mrs. Maurel and Panalpina appealed to the Cour de Cassation stating that their actions had been brought within the three months additional period set out in article 32(2) of law 18 June 1966, corresponding to article 3(6 bis) of the Hague-Visby Rules.
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