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YEARBOOK MARITIME LAW
VOLUME I
1984
General Editor
Ignacio Arroyo
Springer Science+Business Media, B.Y.
General Editor IGNACIO ARROYO
Professor of Law, University of Barcelona. - J.D. University of Deusto, Bilbao, Spain. - LL.M. Harvard University, USA. - Doctor of Law, University of Bologna, Italy. - Diplome de Droit Compare, University of Strasbourg, France. - Titulary Member Comite Maritime International.International Maritime Arbitrator, Deutsche Seeschiedsgerichtsbarkeit, Hamburg, Chambre Arbitrale de Paris.
All editorial correspondence, included book reviews, to Professor Ignacio Arroyo, c/o 'Ramos & Arroyo, Abogados', Paseo de Gracia 92, 2a, 1 a
(Gaudi-La Pedrera), Barcelona 08008, Spain. Phone (3) 215.77.11; telex 59398 FRM-E.
This issue should be cited as (1984) 1 YML
D/1986/2664/28
ISBN 978-94-017-3709-8 ISBN 978-94-017-3707-4 (eBook) DOI 10.1007/978-94-017-3707-4
© 1986, Springer Scieoce+Business Media Dordrecht Originally published by Kluwer Law and Taxation Publishers, Deventer, Netherlands in 1986 Softcover reprint of the hardcover 1st edition 1986
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher.
Contents
Foreword, by Ignacio Arroyo xiii
I. ARTICLES
IGNACIO ARROYO, Maritime Law: An Approach to the Concept. 1
HOWARD M. McCORMACK, A Lawyer's View of Arbitration Proceedings and Composition of the Arbitration Panel . . .. 55
ROLF HERBER, The UN Convention on the Carriage of Goods by Sea, 1978, Hamburg Rules, its Future and the Demands of Developing Countries . . . . . . . . . . . . . .. 81
Z. BRODECKI, Compensation in the Light of the 1984 Protocols to Revise the 1969 CLC and the 1971 Fund Conventions. . .. 99
MARIO RICCOMAGNO, Recognition and Enforcement of Foreign Arbitral Awards in Italy under the NY Convention of 1958 119
ALEXANDRE L. MAKOVSKI, Disputes concerning Lay Days. 135
II. COMPARATIVE LAW
ARGENTINA, by Jose D. Ray Recent Case Law and Relevant Seminars in Argentina 151
BELGIUM, by Leo Delwaide Recent Trends in the Decisions of the Antwerp Court of Appeals concerning Maritime Law (1975-1985). . . . . . . . .. 155
CANADA, by William Tetley Annual Summary 1983-84 (Canadian Admiralty Decisions) . 161
DENMARK, by Allan Philip New Developments of Maritime Law in DK during 1982, 1983 and 1984 . . . . . . . . . . . . . . . . . . . .. 183
vi YEARBOOK MARITIME LAW
DEMOCRATIC REPUBLIC OF GERMANY, by Dolly Richter-Hannes GDR Legislation and Publications in the Sphere of Maritime Law 1984 . . . . . . . . . . . . . . . . . . . .. 187
FEDERAL REPUBLIC OF GERMANY, by Rolf Herber Recent Development of Maritime Law in the Federal Republic of Germany. . . . . . . . . . . . . . . . . . .. 193
FRANCE, by Jean Warot Highlights in French Maritime Law: Legislation and Jurisprudence in 1984 . . . . . . . . . . . . . . . . . . .. 199
GREECE, by Gr. J. Timagenis Developments in Greek Maritime Law: Legislation, Cases and Bibliography 1983-1984. . . . . . . . . . . 205
ISRAEL, by Peter G. Naschitz Recent Developments in Air Law and Maritime Law in Israel (1984). . . . . . . . . . . . . . . . . . . .. 231
ITALY, by Gustavo Romanelli and Enzo Fogliani Survey on Italian Maritime Law - 1984. .
JAPAN, by Kazuo Iwasaki Maritime Law in Japan during 1981-1983 .
NETHERLANDS, by Vincent M. de Brauw Legislation, Case and Bibliography in Dutch Maritime Law (1982,
245
249
1983 and 1984). . . . . . . . . . . . . . . . .. 253
NORWAY, by J!/lrgen Almel!/lV Norwegian Legislation, Case Law, and Bibliography for Maritime law in 1982-83. . . . . . . . . . . . . . . . .. 263
POLAND, by Maria Dragun Review of Polish Court Decisions and Maritime Publications 267
SPAIN, by Ignacio Arroyo Legislation, Case Law and Bibliography of Spanish Maritime Law in 1984 . . . . . . . . . . . . . . . . . . . .. 271
SWEDEN, by Hugo Tiberg Recent Developments in the Swedish Maritime Law, 1984 283
UNITED KINGDOM, by Steven Hazelwood A Brief Review of Developments in the Law of Shipping of the UK 1983-84 . . . . . . . . . . . . . . . . . . .. 291
CONTENTS vii
UNITED STATES, by John D. Kimball New Developments in USA Maritime Law 1984. 299
VENEZUELA, by Luis Cova Arria Panorama of the Maritime Law in Venezuela during 1984 307
III. INTERNATIONAL MARITIME ORGANIZATIONS
a. Intergovernmental Organizations 313
UNCTAD: The Work of UNCTAD in Shipping Legislation, by RICARDO VIGIL . . . . . . . . . . . . . . .. 315
UNCITRAL: The Work of the United Nations Commission on International Trade Law, by STEPHEN R. KATZ. . . . .. 323
IMO: Activities of the International Maritime Organization during 1984, by MARIO VALENZUELA. . . . . . . . . .. 333
OECD: The Organization for Economic Co-operation and Development and Maritime Transport (1984), by ANTONIO MARTINEZ PUNAL. . . . . . . . . . . . . . . . . . .. 341
b. Non-Governmental Organizations 349
IMC: Activities of the International Maritime Committee in 1984, by IGNACIO ARROYO . . . . . . . . . . . . .. 351
BIMCO: Activities of the Baltic and International Maritime Confer-ences, by IGNACIO ARROYO and MATTHEW SCHREIBER 355
UNIDROIT: The Activity of Unidroit in 1982 and 1983, by RIC-CARDO MONACO. . . . . . . . . . . . . . .. 361
ISF: Activities of the International Shipping Federation 1983/84, by D.A. DEARSLEY . . . . . . . . . . . . 371
INTERTANKO: International Maritime Organization 1984 Pro-tocols on Oil Pollution Liability, by TORMOD RAFGARD 375
FIATA: Activities of the International Federation of Associations of Forwarding Agents (Fiata), during 1984, by FRANCISCO J. SANCHEZ-ORTIZ . . . . . . . . . . . . . . .. 385
viii YEARBOOK MARITIME LAW
IV. CASE LAW
International Case Law Highlights, by IGNACIO ARROYO and MATTHEW SCHREIBER
ARBITRATION: 1. - Enforcement of Foreign Arbitral Award. Validity of Arbitral Agreement. Choice of Law. Effect of Voluntary Default of a Party on Arbitration Proceedings. NY Convention on Recognition and enforceability arbitral awards. (Spanish Supreme Court, 11 February 1981, Rederiaktiebilaget GustaJ Erikson v. EuroJrio Alimentos Congelados). - 2. - Enforcement of Foreign Arbitral Award. NY Convention, 1958. Effect of Default of Enforcement of Award. (Spanish Supreme Court, 17 June 1983; Ludmila Shipping Co. v. Maderas G.L.S.A.). - 3. - Whether Cause of Action merged in Arbitration Award (Queen's Bench, United Kingdom, 1984: Richard Adler (TIA Argo Rederei) v. Soutos (Hellas) Maritime Corporation and Another, 'The Argo Hellas', 1 Lloyd's Rep. 296, 341 (1984). . . . . . . . . . . . . . .. 395
ARREST: 4. - Arrest of Vessel and Construction of the Brussels Convention 1952 on Arrest of Seagoing Vessels. (The President of the Court of Rotterdam, The Netherlands, 29 June 1984; Vessel 'River Jimini'). - 5. - Claim for unpaid bunkers. Interpretation of the Brussels Convention of 10 May 1952 on Arrest of Vessels. Art. 8_2°. (Court of Appeal of Rouen, France, 19 June 1984). - 6.Arrest of Vessel and Arbitration. Action in rem for damage to cargo. Jurisdiction of Admiralty Court to authorize arrest. Discharge of security for vessel. (Court of Appeal, United Kingdom, 1984: The Andria now renamed Vasso, 2 WLR 570; sub. nom. The Vasso, 1 Lloyd's Rep. 235,2 LMCLQ, 334 (1984). -7. - Norwegian salesform construction and arrest of vessel. Indemnity Clause. (House of Lords, UK, 1984, The Barenbels, The Financial Times, 13 June 1984, 4 LMCLQ, 553 (1984) . . . . . . . . .. 400
BILL OF LADING: 8. - Proceedings brought against stevedore for damages caused to container. Whether stevedore could relay on protection afforded to carriers in bill of lading. (Court of Appeal of New South Wales, Australia, 1984: Godina and Another v. Patrick Operations Pty. Ltd. 1 Lloyd's Rep. 333, 2LMCLQ 343 (1984).-9. - Incorporating Clause. Arbitration by reference. Intention of the parties (Court of Appeal, United Kingdom, 1983: Skips AIS Nordheim v. Syrian Petroleum Co. (The Varenna), 2 Lloyd's Rep. 592, 2 LMCLQ 194 (1984). -10. - Demise Clause. Himalaya Clause. Liability. (The Federal Court of Canada, Vancouver, 1984: Weyerhouse Co. e.o. v. Anglo Canadian Shipping Co; M.S. Liberian Statesman, 20 European Transport Law 309, 1985) 404
CONTENTS ~
CONTRACT OF CARRIAGE BY SEA: 11. - International Maritime Carriage Parties that are Nationals of EEC member countries. (French Supreme Court-Cour de Cassation, France, Oc-tober, 1984, Le Droit Maritime Franc;ais, 1985). . . . . .. 407
CHARTER-PARTY: 12. - Safe port. Iran-Iraq war. Cancellation of charter-party. (United Kingdom Court of Appeal, 1984: UniOcean Lines Pty Ltd. v. C-Trade S.A. (The Lucille), 1 Lloyd's Rep. 244, 2 LMCLQ 350, 1984). -13. - Construction of New York Produce Exchange Charter-Party Form. Appeal of Arbitrators Award. (House of Lords, UK, 1984: Antaios Compaiiia Naviera S.A. v. Salen Rederierna A.B. (The Antaios), 3 WLR 592, 4 LMCLQ 547, 1984). -14. - Baltime charter-party. Exemption from liability. Interpretation of charterparty language. (The House of Lords, UK, 1984. Tor Line A.B. v. Alltrans Group of Canada Ltd. (The TFL Prosperity), 1 WLR 48, 2 LMCLQ 196 (1984). - 15. - Repudiatory breach of charter contract. Innocent party's demand for performance. (Clea Shipping Corporation v. Bulk Oil International Ltd., 'The Alaskan Trader', 2 Lloyd's Rep. 645, 3 LMCLQ 378 (1984) Court of Appeal, UK, 1984) . . . . . . . . . . . .. 407
CHOICE OF LAW: 16. - Bill of lading clause, Forum non conveniens. Stay of Action. (Admiralty Court, UK, 1984: Dubai Electricity and ORS v. Islamic Republic of Iran Shipping Lines, 'The Arya K': Admiralty Court of United Kingdom, 1984). . . 412
FORUM NON CONVENIENS: 17. - Determination of proper forum. Lloyd's Standard Marine Policy. Jurisdiction to order service in Kuwait. Whether England proper forum. (House of Lords, UK, 1983: Amin Rasheed Shipping Corporation v. Kuwait Insurance Co. 'The Al Wahab', 2 Lloyd's Rep. 365, 1 LMCLQ 171 (1984) 413
HAGUE-VISBY RULES: 18. - Contractual Limitation of Liability. Transhipment. (House of Lords, 1984: Mayhew Foods v. Over-seas Containers Ltd., 1 Lloyd's Rep. 317; 2 LMCLQ 202 (1984). 414
JURISDICTION CLAUSE: 19. - Bill of lading jurisdiction clause. Foreign Tonnage Limitation. Hague Visby Rules construction. House of Lords, 1983: The Hollandia, 1983 A.C. 565). - 20. - Bill of lading clause on jurisdiction. Foreign tonnage limitation. Hague Visby Rules: Court of Appeal, UK, 1984: The Benarty, 1984, 2 Lloyd's Rep. 244; 4 LMCLQ 545 (1984). - 21. - Stay of Action for damages. Exclusive jurisdiction clause. Choice of forum. Queens Bench Division, UK, 1984: The Pia Vesta, 1 Lloyd's Rep. 169) 415
x YEARBOOK MARITIME LAW
LIMITATION OF LIABILITY: 22. - Choice of Law. United States Limitation of Liability Act. Brussels Convention regarding Limitation of Liability. (USA District Court for the Southern District of NY: Matter of Compaiiia Gijonesa de Navegacion S.A., Vessel: 'The Cimadevilla'; 590 Supp. 241, 1885 American maritime cases (SDNY 1984). - 23. - Interpretation of Merchant Shipping Acts 1894-1984. Fault or Privity of Shipowner. Failure to supervise effectively. (House of Lords, 1984: Grand Champion Tankers Ltd., v. Norpipe AIS, 2 WLR 942; 3 LMCLQ 363 (1984); Vessel 'The Marion' . . . . . . . . . . . . . . . . . . 418
SHELF (DELIMITATION OF CONTINENTAL SHELF): 24.Article 62 of the Statute of the International Court of Justice. Right of a Third State to intervene. Determination of when a third Party is 'affected' by an ICJ Decision. (International Court of Justice, The Hague, March 21, 1984: Libyan Arab Jamahiriya v. Malta.. .. 420
V. COMMERCIAL AND MARITIME EVENTS
Formation of Uruguayan Maritime Law Association . . .. 423
Denunciation of 1957 Convention on Limitation of Liability of Owners of Sea-Going Ships ........... 423
Cuba acceded to 1926 Convention on Maritime Liens and Mort-gages. . . . . . . . . . . . . . . . . . . .. 423
Ratification of and Accession to 1956 Convention on Arrest of Ships 423
Ratification of and Accession to 1969 Convention on Liability on Oil Pollution Damages . . . . . . . . . . . . . .. 423
Accession to 1971 Fund for Compensation for Oil Pollution Damage 424
1974 Athens Convention on Carriage of Passengers and their Lug-gage by Sea is near to entry into force. . . . . . . . 424
Ratification of and Accession to the 1978 'Hamburg Rules' . 424
Ratification of UNCTAD Convention on Multi-Modal Transport 424
Ratification of the 1968 Protocol on Bills of Lading . . 425
Adoption of 1984 IMO Protcols on Oil Pollution Liability 425
CONTENTS n
Domestic Pilotage Ordinances passed in Sweden 426
New United States Legislation Reduces Domestic Regulation of Carriers and Alters Harbor Workers' Compensation . 427
The International Shipping Federation is active in 1984 427
France adopts Domestic Legislation affecting Liability, Maritime Insurance, Collision and Salvage. . 428
The German Democratic Republic passes Domestic Legislation in the Sphere of Maritime Law . 429
Amendments to the International Convention for Safe Containers enter into force. . 430
Important International Maritime Conventions enter into force in Spain. . . . 431
1979 Protocol to amend 1957 Convention on Liability of owners of Sea-going Ships enters into force. 431
Dramatic Growth of Chinese Merchant Fleet. 431
Sharp Increase in World Capacity of Oil Tankers 432
UNCTAD adopts Resolution on Maritime Fraud 432
The International Convention Search and Rescue has entered into force . . 433
Albert Lilar 1984 Prize 433
Foreign Limitation Periods Act of 1984 enacted in United Kingdom 433
Chinese Army helps manage Congessed Ports . 433
VI. DOCUMENTATION
Uniform Customs and Practice for Documentary Credits, Revision 1983 . 437
Inter-Club New York Produce Exchange Agreement, 1984 457
UNCTAD Resolution on Maritime Fraud (Geneva, 1984) 461
xii
BOOKS Book Reviews Book Notices Titles Received.
JOURNALS
YEARBOOK MARITIME LAW
VII. BIBLIOGRAPHY
Reference of Articles published in: 'Anuario de Derecho Maritimo' (vol. III: 1984); 'Assicurazioni' (1984); 'CMI News Letter' (1984); 'European Transport Law' (vol. XIX, 1984); 'II Diritto Marittimo' (vol. LXXXVI, 1984); 'Journal of Business Law' (1984); 'Journal of Maritime Law and Commerce' (1984); 'Le Droit Maritime Fran~ais'
467 477 481
(1984); 'Lloyd's Maritime and Commercial Law Quarterly' (1984) 487
VIII. INDEX
Table of Cases . 497
Ships' Names . 507
Foreword
I.
The importance of legal questions related to the sea is obvious to everyone. It is hardly surprising that the subjects that make up international current events illustrate the leading role played by maritime affairs. Indeed, it is no coincidence that three quarters of the earth's surface is covered by oceans. Territorial seas, exclusive economic zones, exploitation of the seabed, fishing, transport, insurance, collision, and pollution raise many unresolved questions.
On the other hand, the contrast of this importance with the modest attention that existing periodical publications merit must be underscored. Without undervaluing these publications, there has been a need for some time to create a vehicle of common expression, based on three central tenets: interdisciplinary framework, tendency towards uniform law, and both a theoretical and practical approach.
a. A framework of interdisciplinary nature seems to be relevant as it is desirable to overcome the artificial separation between public and private law. This is not the proper time to get bogged down in the traditional controversy surrounding the distinction between the various legal disciplines that have as their scope the study of one of the aspects of the sea, either the law of shipping (Seehandelsrecht) as the private law of sea trade, or the law of the sea (droit de la mer) as the international law of the oceans, or even the law of navigation (diritto della navigazione) as a specialized branch of general law; the first one is limited to the relation between private parties, the second relegated to intergovernmental relations, and the third open to all public' and private activities derived from the technical fact of navigation. Our goal is something simpler: to cover, as far as possible, the entire ensemble of legal relations that arise from or are carried out on the sea. It is not our desire to solve in this manner the problem of the concept of maritime law. But we are also aware that the mere juxtaposition of the disciplines must yield before a convergent, interdisciplinary understanding. We realize that precise profiles in scientific study are tempting, but easily become mutilations of reality at least when they deal with legal sciences.
Precisely this interdisciplinary framework has been the first governing criterion of the Yearbook.
b. The international perspective has penetrated maritime law far more than any other branch of law. From the beginning of history, the interchange
xiv YEARBOOK MARITIME LAW
between peoples has been carried on by sea. Leaving aside the interpretation of the history of civilization as a battle between land and sea or, if you prefer, a fight for control of the sea, it surprises no one that the sea, as a channel of communication, has forged on the one hand the nature of relations between States, and on the other the orientation of private interests: navigators were the first merchants and sailors the discovering pioneers who changed the course of history. The conflicts that arose on these two levels of public and private interests nevertheless rest in the same historical constant: the necessity for uniformity of norms. In other words, the history of maritime law is the history of uniform uses, internationally accepted. It is therefore disturbing to accentuate, in effect, the peculiarities of domestic rules designed to regulate phenomena that are no longer domestic in character. The limitation of the territorial sea is an act of national sovereignty but is intended to limit the jurisdiction of other States. The regulation of seaborne transport can only be supranational. These and other examples illustrate the preponderance of the technique of international conventions or the generalization of the law of standard forms as peculiar sources of autonomous production of norms. This is the so-called uniform law.
If we now move from the historical approach to modern times and likewise continue to examine the distinction between public and private law, I would dare to say that the difference between maritime law and the law of the sea is that which separates renovation from consolidation. Maritime law is thousands of years old and only recently has it undergone a phase of profound revision; on the contrary, the law of the sea, as positive, codified law is in an incipient formative process that was initiated in the second half of this century with the 1958 Geneva Conferences. Notwithstanding, both processes converge before a new reality: the consideration of the volume of the sea. From a flat surface used merely for transport, we have discovered today, thanks to technological progress, an immense volume to exploit. Therefore, it is not unusual that the horizontal and vertical planes of the sea demand the apex of international uniformity. The sea has become a common neighborhood yard and it consequently needs the contribution of those scholars with a supranational perspective. This has been the second criterion for orientation of the Yearbook.
c. Together with the overcoming of public and private aspects of maritime law and its international perspective, the Yearbook tries to respond to the concrete necessities of trade, unimpaired by the demands that normally surround all scientific publications. This is perhaps the most delicate question, because it attempts to serve as a model of a specialized publication.
Within the abundance of today's legal journals there exists a variety so rich that it resists all attempts at classification. Nowadays, nevertheless, there seems to be a tendency in favor of a middle ground among the large consolidated journals who, faithful to a purified tradition, are characterized
FOREWORD xv
by their adherence to the traditional method: they are indebted to dogmatism and conceptualism. On the other hand, there are those publications of an informational nature. I do not think that it is bold to underStand that this new attitude has grown under the protection of the first group, and it is reinforced by the insufficiency of the second. They are not wrong, those who from a practical perspective, who live the law where it collides with life, argue for the revision of the traditional method, which, anchored in the worship of categories and concepts, has sometimes brought contemporary legal science to a certain type of stalemate where words are discussed more than the human acts that express them. However, this unrestrained eagerness for information is also unsatisfactory, since in the end it encapsulates knowledge without the possibility of transcending the rapidity and immanence of occurrances. Not every decision, nor legal disposition, nor administrative act deserves attention and comment.
We are not trying to recall the debate between theory and practice, covered with precision by Savigny, since the problem disintegrates when the theoretician enunciates the general case and formulates a useful and efficient theory, and when the practical expert, resolving the concrete case, applies valid and rigorous knowledge. On the contrary, we are trying to signify that the modern lawyer cannot turn his back to reality, and construe the law with reference to philologism and dogmatism. Today more than ever it is necessary to examine the application of the law; to figure out the manner in which mankind applies, distorts, or replaces the will of the State to establish order.
From this perspective, both theoretical and practical, the Yearbook may serve as a sample of the convergence of the two most significant legal systems of western civilization. To affirm, as does Pound, that legal technique is characterized by the manner of applying the law to new situations, or in the Holmes' words, that the life of the law lies in experience, is the same as proposing the classic jurisprudence of the Roman praetor as a model. For Savigny it was, in effect, because the Roman jurists not only dominated the general principles, but also had a perfect legal vision of cases that they had to resolve. This ability to pass from the general to the concrete, and from the particular to the general is, in my opinion, the cornerstone of legal sensibility.
II.
The publication that I am honored to present to the benevolence of the reader attempts to pursue this new path, thereby breaking the watertight holds that separate tradition and modernity. It aspires to be the vanguard that opens routes of future expression, but without renouncing the investigator's patient labor, constructed upon the facts that history has given us.
The previous considerations permit the reader to situate himself in
xvi YEARBOOK MARmME LAW
relation to the work that he holds in this hands. A publication that does not want to separate life and text. For this reason it is an open work that is offered - reiterating that well-known expression:':' to those who make their life a fight for justice with the law as their weapon. I would also like to indicate that the realization of the project is reflected in an obvious form; through publication, and in a constant manner: in a Yearbook. On the other hand, I believe it is safe to say that a reading of the index provides a thoroughly detailed explanation of the contents. The reader will be able to judge, in any case, if efforts have been spared.
Naturally, none of this would have been possible without the enthusiasm of all my colleagues, both Spanish and foreign, and institutions, both public and private, which have responded to my invitation to collaborate in this first volume. They have demonstrated that the solidarity that has always governed the activity of the people of the sea has not on this occasion been a mere declaration of words. I am profoundly grateful to everyone. Finally, I hope that the permanence of this efforts demonstrates the vitality of our law at the same time that it fosters the hope of continuity. This is something of which we are certain if we combine the pessimism of intelligence with the optimism of the force of will.
Prof. IGNACIO ARROYO