Towards an €-maritime (contract)

law?

Pablo Constenla Acuña

Is there a room for an EU maritime law on its own?

Public law: regulation of maritime safety.Sulphur contents in Directive 2005/33/EC.Proposal to reduce greenhouse effects.

Prevention of pollution: ERIKA I, ERIKA II, HNS Convention ratification, Directives 2004/35/CE and 2005/35/CE and Decision 2005/667/JHA.

Competition matters.Council Regulation (EC) No 1419/2006 of 25 September 2006 lays down detailed rules on maritime transport and includes cabotage and tramp services.

ECJ Judgment C-83/13 extends the free provision of services even if the vessel is flagged in a third State provided that the company is national in an EEE country.

And… private (contract) maritime law?

- But… Common European Transport Policy (CTP)

Com

ple

xit

ySeveral parties

involvedForum

shopping - outflagging

Presura by the players

PECL and DCFR

Formation, validity, interpretation and content of contracts;

Performance of obligations and remedies of non-performance;

Content of specific contracts and the rights and obligations arising from them;

Private law rights and obligations that do not arise from a contract (i.e. unjustified enrichment and damage caused to another); and

Matters of moveable property: acquisition and loss of ownership trust law.

HOWEVER,

Shipping contracts are concluded in an urgent manner and not much time can be spent.

Past experience (FIATA Model Rules96 and UNCTAD/ICC Rules 1992)

is not stimulating.

CHOICE OF LAW

Difficulties in ascertaining foreign law.

Duty to prove that foreign law supports the submissions.

Problems with the foreing court: has it jurisdiction? ECJ Judgment C-71/83.

Particular matter: Rome I Regulation and the Rotterdam Rules.

Scope of application or conflict rule?

Article 5.1 Rome I Regulation

To the extent that the law applicable to a contract for

the carriage of goods has not been chosen in accordance with

Article 3, the law applicable shall be the law of the

country of habitual residence of the carrier, provided

that the place of receipt or the place of delivery or the

habitual residence of the consignor is also situated in that

country.

If those requirements are not met, the law of the

country where the place of delivery as agreed by the

parties is situated shall apply.

Article 5.1 Rotterdam Rules

Subject to article 6, this Convention applies to contracts of carriage in which the place of receipt and the place of delivery are in different States, and the port of loading of a sea carriage and the port of discharge of the same sea carriage are in different States, if, according to the contract of carriage, any of the following places is located in a Contracting State:

- The place of receipt;

- The port of loading;

- The place of delivery; or

- The port of discharge.

Mandatory and uniform system:EU AND the world

International Agreements concluded by the EU have preference over EU secondary law and Member States national law.

EU institutions are competent to regulate EU transport.

Article 90 TFEU: the objectives of the Treaties shall, in matters governed by this Title, be pursued within the framework of a common transport policy.

So, why the EU did not ratify the private maritime law conventions yet?

Increase of “forum shopping”.

Conflicts between Member States’ obligations both to an international Convention and to the Community.

i.e. Article 55 of the French Constitution.

Legal conflict between International Agreements concluded by the EU and the EU secondary law.

Problems following the non-ratification

A good current example

Obstacles to intermodal transport: the lack of a coherent network of modes and interconnections, the lack of technical interoperability between and within the modes, a variety of regulations and standards for transport means, data- interchange and procedures.

The law should be helpful: Multimodal contract as a sui generis contract (2005 Proposal)

Two competing international legal regimes

Need for a uniform system (2009 Report)The Rotterdam Rules? A truly multimodal regime?

Conclusion

The EU private maritime law passes through the connection

with the world and both the unification and uniformity of

the law.

The debate EU vs. the world or EU Commission vs.

IMO/UNCITRAL/CMI seems not to be the right way and should not go ahead.