in which the shipping trade works”.
2 In The Achilleas,
3 the House of Lords reversed
the decision of the Court of Appeal about the amount of damages recoverable for
breach of a charterparty because, to use the words of Lord Hope, the decision of the
Court of Appeal would have created “a real risk of serious commercial uncertainty
which the industry as a whole would regard as undesirable”.
4 We are often told,
reassuringly, that when maritime law moves, it moves in step with the needs of
maritime commerce.
Unfortunately, as this chapter attempts to show, that is often not true. Sometimes—often—the concepts and contractual terms used by maritime law lag far
behind what is actually going on in maritime practice. Section 3 of this chapter,
which deals with the stubborn persistence of the 1946 version of the New York
Produce Exchange time charter form, provides just one example among many.
Sometimes—often—international instruments of maritime law have been created
with wholly admirable precision to meet modern commercial needs, but have moved
far ahead of maritime practice, proving incapable of moving national laws or
commercial usage along with them. Section 2, on multimodal transportation, is an
example, as is Sect. 5, on general average. Sometimes, familiar and widely-used
legal terms continue to deal with issues that have long ceased to be of relevance in
maritime practice. Section 4, on the Both-to-Blame Collision Clause is an example.
In short, the idea that maritime law moves smoothly in lockstep with the needs of
maritime commerce is an illusion. Very often, maritime law either moves on its own,
or it does not move at all. The examples in this chapter are widely disparate in
character, but they have one thing in common: they are examples of maritime law at
distant odds from maritime practice. Many other examples could have been used.
2 Back to the Future with Multimodal Transportation
The legal problems caused by a “network” approach to multimodal transportation
have been apparent since the “container revolution” of the 1950s and 1960s. If cargo
can be carried by several different modes of transportation—road, rail, sea—in the
same shipping container, the rights of the cargo owner (or its insurer) to compensation for damage or loss may vary, depending on when and in which stage of
transportation the damage occurred. The many differences between the applicable
unimodal regimes mean that the law relating to multimodal transportation has
2 Id. at 588 per Steyn J. The Baltic Exchange’s Baltic Code 2014 for brokers on the Exchange has
printed at the bottom of every page “Our word our bond”, but it also says (much less prominently):
“It is important to note that no fixture has been concluded until all ‘subjects’ have been lifted”:
see p. 19.
3 Transfield Shipping Inc. v. Mercator Shipping Inc. [2009] 1 A.C. 61 (reported sub nom The
Achilleas [2008] 2 Lloyd’s Rep. 275).
4 Id. at 72, [29] per Lord Hope of Craighead, quoting the minority arbitrator’s reasons for dissenting
from the original decision in favour of the shipowner.
154
M. Davies
2 In The Achilleas,
3 the House of Lords reversed
the decision of the Court of Appeal about the amount of damages recoverable for
breach of a charterparty because, to use the words of Lord Hope, the decision of the
Court of Appeal would have created “a real risk of serious commercial uncertainty
which the industry as a whole would regard as undesirable”.
4 We are often told,
reassuringly, that when maritime law moves, it moves in step with the needs of
maritime commerce.
Unfortunately, as this chapter attempts to show, that is often not true. Sometimes—often—the concepts and contractual terms used by maritime law lag far
behind what is actually going on in maritime practice. Section 3 of this chapter,
which deals with the stubborn persistence of the 1946 version of the New York
Produce Exchange time charter form, provides just one example among many.
Sometimes—often—international instruments of maritime law have been created
with wholly admirable precision to meet modern commercial needs, but have moved
far ahead of maritime practice, proving incapable of moving national laws or
commercial usage along with them. Section 2, on multimodal transportation, is an
example, as is Sect. 5, on general average. Sometimes, familiar and widely-used
legal terms continue to deal with issues that have long ceased to be of relevance in
maritime practice. Section 4, on the Both-to-Blame Collision Clause is an example.
In short, the idea that maritime law moves smoothly in lockstep with the needs of
maritime commerce is an illusion. Very often, maritime law either moves on its own,
or it does not move at all. The examples in this chapter are widely disparate in
character, but they have one thing in common: they are examples of maritime law at
distant odds from maritime practice. Many other examples could have been used.
2 Back to the Future with Multimodal Transportation
The legal problems caused by a “network” approach to multimodal transportation
have been apparent since the “container revolution” of the 1950s and 1960s. If cargo
can be carried by several different modes of transportation—road, rail, sea—in the
same shipping container, the rights of the cargo owner (or its insurer) to compensation for damage or loss may vary, depending on when and in which stage of
transportation the damage occurred. The many differences between the applicable
unimodal regimes mean that the law relating to multimodal transportation has
2 Id. at 588 per Steyn J. The Baltic Exchange’s Baltic Code 2014 for brokers on the Exchange has
printed at the bottom of every page “Our word our bond”, but it also says (much less prominently):
“It is important to note that no fixture has been concluded until all ‘subjects’ have been lifted”:
see p. 19.
3 Transfield Shipping Inc. v. Mercator Shipping Inc. [2009] 1 A.C. 61 (reported sub nom The
Achilleas [2008] 2 Lloyd’s Rep. 275).
4 Id. at 72, [29] per Lord Hope of Craighead, quoting the minority arbitrator’s reasons for dissenting
from the original decision in favour of the shipowner.
154
M. Davies