YEARBOOK MARITIME LAW

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