international transport law review -...

ARTICLES:

Contractual Liability of Classification Societies in Belgium: Dune Case JAN DE BRUYNE

Third Parties Protection in Carriage of Goods by Sea: Theoretical Observation CARLO CORCIONE

REVIEWS:

Olena Bokareva – Multi-modal Transportation under the Rotterdam Rules: Legal Implications for European Carriage of Goods and the Quest for Uniformity

MARC A. HUYBRECHTS

EVENTS:

4th International Research Seminar in Maritime, Port and Transport Law

1st International Transport & Insurance Law Conference

2nd Transport Law de lege ferenda: Annual Young Academics' Vision on Tomorrow's Transport Law

7th London Universities Maritime Law and Policy Group Postgraduate Research Conference

1st Adriatic Maritime Law Conference

3rd Transport Law de lege ferenda: Annual Young Academics' Vision on Tomorrow's Transport Law

CMI 2016 New York Conference: Young CMI Session

TRANSPORT LAW PROGRAMMES:

Faculty of Law, University of Zagreb

Faculty of Law, University of Bologna

International Transport

Law Review Vol. 1 | Issue 1 | 2016

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International Transport Law

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ISSN 2459-7325

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PROFESSOR ALEKSANDAR BRAVAR University of Zagreb

PROFESSOR STEFANO ZUNARELLI University of Bologna

EXECUTIVE EDITORS

MASSIMILIANO MUSI University of Bologna

MIŠO MUDRIĆ University of Zagreb

ARBER GJETA Elbasan University

JULIA CONSTANTINO CHAGAS LESSA City University London

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Professor ERIK RØSAEG Scandinavian Institute of Maritime Law, University of Oslo

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Professor GRETA TELLARINI University of Bologna

Professor ERIC VAN HOOYDONK Ghent University

Professor GIUSEPPE VERMIGLIO University of Messina

Professor LIHONG ZHANG East China University of Politics and Law

EDITORIAL BOARD

Aniekan Akpan (City University London), Manuel Alba Fernández (Universidad Carlos III de Madrid), Dimitrios Arvanitis (City University London), Abhinayan Basu Bal (University of Gothenburg), Olena Bokareva (Lund University),

Michele Borlasca (University of Bologna), Alessio Claroni (University of Trento), Carlo Corcione (City University London), Duygu Damar (Max Planck Institute for Comparative and International Private Law), Jan de Bruyne (University of Ghent), Roberto Di Cillo (Di Cillo Advogados associados), Luigia Di Girolamo (University of Bologna), Sarah Fiona Gahlen (Kiel University), Andrea Giardini (University of Bologna), Leonida Giunta (University of Venice), Johanna Hjalmarsson (University of Southampton), Haedong Jeon (College of Maritime Sciences, Korea Maritime and Ocean University), Anna Katsoulaki (City University London), Audrey Kravetz (Leuphana University, Kravets & Kravets), Erik Kravetz (Leuphana University, Kravets & Kravets), George Leloudas (Swansea University), Jose Maria Lezcano Navarro (University of Panama), Ioanna Magklassis (London Metropolitan University), Bevan Marten (Victoria University of Wellington), Rosachiara Martiriggiano (University of Bologna) Sebastian Meyer (Ludwig Maximilian University of Munich), Anna Montesano (University of Bologna), Faizah Nazri Abd Rahman (University of Malaya), Pieter Neels (Ince & Co – Antwerp), Elena Orrù (University of Bologna), José Manuel Martín Osante (Universidad del País Vasco), Melis Özdel (University College London), Alla Poznakova (University of Oslo), Giovanni Pruneddu (University of Sassari), Nicola Ridolfi (University of Bologna), Marilda Rosado de Sá Ribeiro (Universidade do Estado do Rio de Janeiro), Veronica Ruiz Abou Nigm (University of Edinburgh), Iva Savić (University of Zagreb), Anna Liberata Melania Sia (University of Catanzaro), Marcus Soanes (City University London), Artan Spahiu (University of Elbasan), Michiel Spanjaart (National University of Singapore), Ersida Teliti (University of Tirana), Steven Truxal (City University London), Cedric Vanleenhoove (University of Ghent), Wouter Verheyen (Erasmus University Rotterdam), Adriana Vincenca Padovan (Adriatic Institute - Croatian Academy of Sciences and Arts), Minghua Zhao (Greenwich Maritime Institute, University of Greenwich)

PORTAL EDITOR

Loredana DESPOT Faculty of Law, University of Zagreb

International Transport Law Review

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Volume 1 Issue 1 2016

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no.) 1 ITL Review (issue no.) 1 (2016)

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To: ITL Review Executive Editors @: [email protected] : 00 385 1 4597 504 Postal Address International Transport Law Review Faculty of Law, University of Zagreb Trg maršala Tita 14, 10000 Zagreb Croatia © 2016 Faculty of Law, University of Zagreb All rights reserved. Open Access Journal.

The International Transport Law Review publishes expert and scientific papers, case comments, national legislation and case law updates’ reports, book reviews (in particular with regard the master and doctoral thesis publications), conferences’, seminars’ and workshops’ comments, overviews of educational institutions’ courses in maritime and general transport law, and other types of contributions in the field of General Transport (Air, Road, Rail, Internal Waterways Navigation) Law, Admiralty, Maritime and Shipping Law, General Transport and Marine Insurance Law, Offshore Energy Law, International Trade Law, Law of Sea, Marine Environmental Law, and other related areas.

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Review Process The articles and case comments submitted for publication in the International Transport Law Review are subjected to a preliminary review conducted by the Editors in order to ensure coherence with the ITL Review field of interest and adherence with the Instructions for Authors guidelines.

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CONTENTS International Transport Law Review, Vol. 1 | Issue 1 | 2016

Editorial.................................................................................................. 1

ARTICLES Contractual Liability of Classification Societies in Belgium: Dune Case ...... 3

Third Parties Protection in Carriage of Goods by Sea: Theoretical Observation.......................................................................................... 15

REVIEWS Olena Bokareva – Multi-modal Transportation under the Rotterdam Rules: Legal Implications for European Carriage of Goods and the Quest for Uniformity ............................................................................................ 29

EVENTS 4th International Research Seminar in Maritime, Port and Transport Law 37

1s t International Transport & Insurance Law Conference ........................ 39

2nd Transport Law de lege ferenda: Annual Young Academics' Vision on Tomorrow's Transport Law ................................................................... 42

7th London Universities Maritime Law and Policy Group Postgraduate Research Conference ............................................................................ 45

1s t Adriatic Maritime Law Conference .................................................... 47

3rd Transport Law de lege ferenda: Annual Young Academics' Vision on Tomorrow's Transport Law ................................................................... 49

CMI 2016 New York Conference: Young CMI Session ............................. 52

TRANSPORT LAW PROGRAMMES Faculty of Law, University of Zagreb ...................................................... 54

School of Law, Alma Mater Studiorum – University of Bologna............... 61

Instructions for Authors ........................................................................ 64

International Transport Law Review http://itlr.pravo.unizg.hr/

1 Editorial

Editorial

The world of Maritime and Transport Law is constantly changing, thus making it

necessary for the scholars and legal professionals in the field to seek and receive

continuous updates on relevant changes. Unlike in the past, in the today’s global market

it is no longer sufficient just to know and study the rules laid down by the regulation of

our own countries, but it is necessary to gain a comprehensive view of the entire

international legal system.

To this end, it is becoming increasingly essential to make use of tools that allow us to

get acquainted with the – in a comparative perspective – new rules in force in various

countries, evolution of legal doctrine interpretation, recent and relevant court decisions

(significant precedents) and other relevant events.

It is undeniable that, today, there exists a need for a collective and deep reflection on a

multitude of disparate aspects with regard the Maritime, Transport and International

Trade Law, that constantly generate an intense debate, both at a national and

international level.

For all these reasons, a small group of young scholars in the field, Dr. Massimiliano

Musi, Dr. Mišo Mudrić, Dr. Arber Gjeta and Dr. Julia Constantino Chagas Lessa, decided to

start a new journal – the International Transport Law Review (ITL Review) – that aims,

as its main objective, to serve as an “update tool”, allowing the scholars and legal

practitioners to navigate through such a complex world as is the case with the

International Maritime and Transport Law.

The ITL Review’s aim is, furthermore, to offer the analysis of the key juridical institutes

in individual legal systems, in order to develop the reciprocal experience, provide

interesting “hints” utilized to solve difficult practical problems, and generate new ideas.

The Journal will consist of one or more issues per year, and be published on-line as an

open access journal.

The Journal will publish expert and scientific papers, case comments, national

legislation and case law updates’ reports, book reviews (in particular with regard the

master and doctoral thesis publications), conferences’, seminars’ and workshops’



2 Editorial

comments, overviews of educational institutions’ courses in maritime and general

transport law, and other types of contributions in the field of general transport (air, road,

rail, internal waterways navigation) law, maritime and shipping law, transport (marine)

insurance law, offshore energy law, international trade law, law of the sea, marine

environmental law, and other related areas. In addition, the Journal will also contain a

section devoted to the PhD and LLM research, in order to leave room for the youngest

scholars in our field.

We hereby issue an open call to all colleagues, both in Academia and Practice, to

consider possible contributions to the ITL Review. The emphasis is placed on the younger

colleagues who are striving to get engaged in the academic work, and colleagues from the

practice who are, on a daily basis, faced with difficult practical legal problems, and are

interested to share their solutions and open issues with the general public.

Zagreb & Bologna, October 2016

Editors in Chief

Aleksandar Bravar and Stefano Zunarelli



3 Article | De Bruyne: Contractual Liability of Classification Societies…

Contractual Liability of Classification Societies in Belgium:

Dune Case

Jan De Bruyne *

ABSTRACT

The Dune case is one of the few decisions in Belgium addressing the contractual

liability of classification societies. The ruling is in line with conclusions of older

cases dealing with the liability of classification societies towards shipowners. The

Antwerp Court of Appeal concluded that the classification society acted

negligently by issuing the class certificate without first completing the necessary

preparatory works. The decision affirmed that classification societies are obliged

to survey vessels to the best of their abilities and apply the normally required

diligence and care when performing the survey (obligation de moyen), without

necessarily having to achieve a particular anticipated result (obligation de

résultat). The Court eventually held that the repair and maintenance costs to

make the Dune seaworthy did not constitute the plaintiffs’ contractual damage.

The Court, however, concluded that it was beyond reasonable doubt that the

plaintiffs suffered pecuniary loss because of the classification society’s

negligence. Therefore, the recoverable loss was estimated ex aequo et bono at

€35.000. The case of the Dune also shows that classification societies do not take

over the shipowner’s responsibility to provide a seaworthy vessel. The shipowner

is fully responsible to ensure that the vessel remains seaworthy between all

periodical class surveys. A class certificate is an indication of the vessel’s state at

the moment that the survey is completed, but cannot be used by the shipowner

as an absolute proof of the vessel’s seaworthiness.

KEY WORDS

Classification Societies, Contractual Liability, Belgium, Dune



4 ITL Review | Vol. 1 | Issue 1 | 2016 | 3-14

1. Introduction

Classification societies are independent legal entities hired and paid for by the owner of

vessel that is to be classified and certified. Classification societies issue a class certificate

attesting that a vessel is built in accordance with the so-called class rules. Important

sectors of and actors in the maritime industry rely on these certificates as assurance that

the classed vessel is likely to be reasonably suited for its intended use.1 As such,

classification societies perform a vital function with respect to the insurability and

marketability of vessels.2 Besides shipowners and vessel purchasers, maritime insurers,

cargo-owners and charterers use certificates of class prior to providing financial coverage

or prior to hiring the vessel. A certificate allows them to make a reasonable assumption

as to the condition of ship and the risks it represents without having to check the vessel

themselves.3 This is referred to as the private function of classification societies. A

classification contract is agreed with the shipowner or the shipyard in accordance with

the class rules.4

From this private function, the role of classification societies has gradually expanded

to cover public tasks. This is referred to as statutory certification.5 Flag States have a duty

to take appropriate measures for vessels flying their flag to ensure safety at sea. 6 States

often delegate executive powers to classification societies. Acting as Recognized

* Jan De Bruyne is an Assistant for comparative and private law at the Faculty of Law of the University of Ghent (Center of Contract Law). His Ph.D. research focusses on the liability of certifiers such as the classification societies and credit rating agencies. He was a Visiting Fellow at the Institute of Comparative and European Law at the University of Oxford in 2014 and at the Center for European Legal Studies in Cambridge in 2015.

1 Machale A. Miller, “Liability of Classification Societies from the perspective of United States Law”, Tulane Maritime Law Journal (1997): 82-88; Nicolai Lagoni, The Liability of Classification Societies (Berlin: Springer, 2007), 43-50; International Association of Classification Societies (IACS), “Classification Societies: their key role”, 2001, 5-6, available at: International Association of Classification Societies Ltd. portal, http://www.iacs.org.uk/document/public/explained/CLASS_KEY_ROLE.pdf (accessed on 1st June 2016).

2 Juan L. Pulido Begines, “The EU Law on Classification Societies: Scope and Liability Issues”, Journal of Maritime Law & Commerce (2005): 487-488. 3 Damien L. O’Brien, “The Potential Liability of Classification Societies to Marine Insurers under United States Law”, University of San Francisco Maritime Law Journal (1995): 404-405; Hannu Honka, “The Classification System and its Problems with Special Reference to the Liability of Classification Societies”, Tulane Maritime Law Journal (1994): 3-5; Miller, op.cit., 82-88; Lagoni, op.cit., 43-50; IACS op.cit., 11-26.

4 Lagoni, id.; IACS, ibid., 43-46.

5 Alan Khee-Jin Tan, Vessel-Source Marine Pollution: the Law and Politics of International Regulation (Cambridge: Cambridge University Press, 2006), 44.

6 Article 94 (3), United Nations Convention on the Law of the Sea (UNCLOS), United Nations Treaty Series : 1833, 1834, 1835.


http://www.iacs.org.uk/document/public/explained/CLASS_KEY_ROLE.pdf



Organizations (ROs), the latter become responsible for the implementation and

enforcement of international maritime safety standards.7 Consequently, a classification

society acting on behalf of a flag State is bound by two contracts. The first one with the

Flag State itself – an agreement on the delegation of power; and, the second with the

shipowner – for the performance of the obligatory statutory surveys – a statutory survey

contract.8

Classification societies have already been held liable in several co untries, both towards

the shipowners (on a contractual basis) as well as towards third parties (on a non -

contractual basis).9 The contribution at hand sheds light on the recent Dune case dealing

with the contractual liability of a classification society in Belgium. Prior to this analysis, a

number of essential principles of Belgian contract law will be examined. Although an in -

depth analysis of Belgian contract law is beyond the scope of the present paper, 10 it is

necessary to describe the general and basic legal principles to fully understand the Dune

case.

2. General Considerations on Contractual Liability in Belgium

2.1. General Requirements

Shipowners who want to recover their losses have to prove that the classification society

violated the classification agreement. Article 1101 of the Belgian Civil Code (BCC) defines

a contract as “… an agreement by which one or more persons obligate themselves to one or

7 Begines, op.cit., 488-490; Lagoni, op.cit., 43-50; Anthony Antapassis, “Liability of Classification Societies”, Electronic Journal of Comparative Law (2007): 13-14. 8 Lagoni, ibid., 53-55; Jan De Bruyne, Cedric Vanleenhove, “An EU perspective on the liability of classification societies: selected current issues and private international law aspects”, Journal of International Maritime Law (2015): 104-105.

9 For an extensive discussion and references to case law see: Jan De Bruyne, “Liability of Classification Societies: Cases, Challenges and Future Perspectives”, Journal of Maritime Law and Commerce (2014): 196-221. See for the contractual liability of classification societies in Belgium: Rukie case, Court of First Instance Dendermonde, January 11, 1973, Rechtspraak Haven van Antwerpen (1973): 127. See for the non-contractual liability of classification societies in Belgium: Paula case, Court of Appeal Antwerp, May 10, 1994, Rechtspraak Haven van Antwerpen (1995): 301; and, Spero case, Court of Appeal Antwerp, February 14, 1995, Rechtspraak Haven van Antwerpen (1995): 321.

10 See in this regard: Marc A. Huybrechts, “Classificatiemaatschappijen of de schone schijn doorkruist?”, in: Liber Amicorum Jacques Putzeys, ed. Jacques Putzeys (Bruylant: Brussel, 1996), 471-472; Marc A. Huybrechts, “De Classificatie-maatschappij en haar aansprakelijkheid”, Tijdschrift Vervoer en Recht (1997): 1-5.




more other persons to give, to do or not to do something”.11 Four requirements have to be

met for a contract to be valid and binding: all parties must have reached mutual consent

to create a legal obligation (consentement); all parties have to be legally competent (or

have legal capacity) to contract (capacité à contracter); the contract needs to have a legal

object (object); and the parties must have a valid cause/reason to contract (cause de

l’obligation).12

Against the background of the animo contrahendae obligationis, parties are free to

determine the content of their contract, the contractual terms and obligations. Article

1134 BCC further embodies the principle of performance in good faith of any agreement

(bonne foi). It is an expression of the duty of loyalty owed by each contractor to the bargain

reached between the parties, a duty to respect the mutual confidence agreement as to the

content of the contract.13 In addition, Article 1135 BCC states that contracts do not only

oblige to what is expressly agreed between the parties but also to all the consequences

attached to these obligations by equity, custom or the law (statutes and regulations).14

2.2. Obligation of Result and Obligation of Means

The Belgian courts address the contractual liability of classification societies from the

perspective of the nature of their contractual obligations. The distinction betwe en the

obligation to produce or achieve a specific anticipated result (obligation de résultat) and

the obligation to apply the normally required diligence, reasonable care and skill

(obligation de moyen) is essential in this regard. This distinction influences the content

11 Author’s (unofficial) translation of Article 1101 Belgian Civil Code (BCC), March 21, 1804, 1804-03-21/3 0, “Een contract is een overeenkomst waarbij een of meer personen zich jegens een of meer andere verbinden iets te geven, te doen, of niet te doen”. 12 Article 1108 BCC. See in general: Jacques Herbots, “Belgium”, in: International Encyclopedia for Contracts, ed. Jacques Herbots (Alphen aan den Rijn: Kluwer Law International, 1998), 39-40; Walter Van Gerven, Sofie Covemaeker, Verbintenissenrecht (Leuven: Acco, 2006), 719. 13 Sophie Stijns, Dirk van Gerven, Patrick Wéry, “Chronique de jurisprudence. Les obligations: les sources (1985-1995)”, Journal des Tribunaux (1996): 33-35; Walter Van Gerven, Sofie Covemaeker, Verbintenissenrecht (Leuven: Acco, 2001), 58-59; Jan M. Smits, Sophie Stijns, Inhoud en Werking Van de Overeenkomst Naar Belgisch en Nederlands Recht (Intersentia: Antwerpen, 2005), 40-43; Hubert Bocken, “De goede trouw bij de uitvoering van verbintenissen”, Rechtskundig Weekblad (1990): 1043. 14 Also see: De Bruyne, op.cit., 190-191, with additional references.




and scope of a classification society’s specific obligations, and, especially, the burden of

proof allocation.15

Classification societies will have violated an obligation de résultat whenever the

promised result has not been reached, unless the society is able to prove that this failure

is due to an impossibility or force majeure. The shipowner will thus only have to establish

that the classification society did not achieve the contractually promised result(s). A

violation of an obligation de moyen, on the other hand, presupposes that the classification

society did not apply the required care and skill. If the contract is qualified as obligation

de moyen, the classification society will only be liable if the shipowner shows that the

former was negligent and did not act as a reasonable and careful society placed in the

same circumstances would (bonus pater familias criterion).16 This has to be considered

on the basis of the actual facts and circumstances of each case (in concreto). However, this

consideration is often given an objective touch by relying on external circumstances (and

expertise) such as professional classification and certification knowledge.17

2.3. Indemnity and Exoneration/Exemption Clauses

Most contracts will often contain a provision that explicitly limits the duty of the

classification society to the sole application of necessary diligence without assuring a

particular result (obligation de moyen). This is strengthened by the inclusion of indemnity

and exoneration/exemption clauses limiting the liability in case of a violation of

contractual terms.

Indemnity clauses are provisions under which a party (shipowner) assures to

compensate the other party (classification society) for any harm, liability or loss arising

15 Van Gerven, Covemaeker, op.cit., 32-33; Jan Roodhooft, Cathy Vanackere, “Definitie en enkele soorten”, in: Bestendig Handboek Verbintenissenrecht, ed. Jan Roodhooft (Kluwer: Antwerpen, 1998), 40.

16 Van Gerven, Covemaeker, id.; Leentje Van Valckenborgh, “De kwalificatie van een verbintenis als resultaats- of middelenverbintenis”, Tijdschrift voor Belgisch Burgerlijk Recht (2011): 222-229; Bernard Dubuisson, “Questions choisies en droit de la responsabilité contractuelle”, in: La théorie générale des obligations, ed. Patrick Wéry (Luik: Larcier, 1998), 103; Sophie Stijns, Verbintenissenrecht. Boek 1 (Brugge: Die Keure, 2005), 8-10; Marc Kruithof, Eddy Wymeersch, “The Regulation and Liability of Credit Rating Agencies in Belgium”, The Belgian Reports at the Congress of Utrecht of the International Academy of Comparative Law, ed. Eric Dirix, Yves Henri Leleu (Brussel: Bruylant, 2006), 374-376. 17 Hubert Bocken, Ingrid Boone, Inleiding tot het schadevergoedingsrecht: buitencontractueel aansprakelijk - heidsrecht en andere schadevergoedingsstelsels (Brugge: Die Keure, 2011), 100-102. Also see: De Bruyne, op.cit., 190-191, with additional references.




out of the contract. The Belgian courts accept their validity as long as they comply with

public legal policy and common decency.18

Exoneration clauses, on the other hand, are contractual provisions that protect a

classification society from being sued by its co-contractors for damage, negligence or non-

performance. Exoneration clauses included in classification rating agreements or terms

and conditions of use are principally valid under Belgian law. There are, however, three

exceptions. Clauses excluding or limiting the classification society’s liability vis-à-vis

professional parties are not valid if they: (1) conflict with public policy or mandatory law

restricting the possibilities for the classification society to exclude or limit its liability; (2)

are applicable as to the classification society’s personal fraud or intentional acts; or (3)

render invalid the essential object of the classification agreement.19

The last requirement can be problematic in the context of classification societies. A

reference is, for example, made to the decision by the Antwerp Court of Appeal in the

Paula case. Several parties claimed recovery from the classification society Nautilius

alleging that the latter issued a class certificate even though the vessel Paula was

unseaworthy. Nautilius referred to the exoneration clause in its terms and conditions to

reject any potential liability. The clause stipulated that the issuance of a certificate of class

could not lead to “any” liability on the part of the classification society or its employees.20

However, the Court rejected the use of such a broad exoneration clause on the ground that

it would render invalid the content of the classification society’s contractual obligations. 21

2.4. Contract Interpretation

18 Alois van Oevelen, “Exoneratiebedingen en vrijwaringsbedingen”, in: Actuele Ontwikkelingen inzake Verbintenissenrecht, ed. Vincent Sagaert & Dirk Lambrecht (Antwerpen: Intersentia, 2009), 30-34; De Bruyne, op.cit., 192. 19 See in this regard the judgment by the Belgian Supreme Court, September 25, 1959, Arresten van het Hof van Verbreking (1960): 86, For an overview see: Alois van Oevelen, op.cit., 11-19; Ludo Cornelis, “Les clauses d’exonération de responsabilité couvrant la faute personelle et leur interprétation”, Revue Critique De Jurisprudence Belge (1981): 204-209; Nicolas Carette, “Exoneratiebedingen in het gemeen recht”, Jura Falconis (2005): 81; Bernard Dubuisson, “Les clauses limitatives ou exonératoire de responsabilité ou de garantie en droit belge”, in: Les clauses applicables en cas d’inexécution des obligations contractuelles , ed. P. Wery (Brussel: Die Keure, 2001), 63; De Bruyne, ibid., 191-192.

20 Paula case, op.cit., 311 (“geen enkele aansprakelijkheid kan doen ontstaan”). 21 Ibid., 315.




In the unlikely case that the contract does not contain a provision specifying that the

society must apply reasonable efforts, a recourse to general legal principles is necessary.

Here, the majority view applies the idea of contract interpretation.22 If a specific

delimitation of contractual obligations is open for consideration, Article 1156 BCC

requires adjudicators to rely on the actual common intention of the parties to determine

the meaning of contract.23

An important criterion used to interpret the contract is the degree of certainty to which

a classification society is able to achieve a particular result.24 Since a class certificate only

confirms the seaworthiness of a vessel at the time it is issued, there is an inherent element

of uncertainty with regard to a classification society’s contractual obligations. Therefore,

it can be argued that a classification society only has to perform services to the best of its

abilities. A minority view, however, relies on Article 1135 BCC and the notion of good faith

to interpret the content of a classification contract.25

The additional implied obligations, such as the requirement to inform parties of

technical deficiencies, could arise out of a classification contract.26 This criterion is more

subjective and takes case-related circumstances into account.27

2.5. Non-Contractual Remedy

The final aspect concerns the question whether shipowners having contracted with a

classification society can recover in tort from the latter, having in mind the Belgian

doctrine of non-concurrence of liability in contract and in tort (non-cumul des

responsabilités). Legal scholars have reached different interpretations with respect to the

case law of the Cour de Cassation on this issue.28

22 Pierre Van Ommeslaghe, Droit des obligations I (Brussel: Bruylant, 2010), 40-41; Van Gerven, Covemaeker, op.cit., 33; Thierry Vansweevelt, De civielrechtelijke aansprakelijkheid van de geneesheer en het ziekenhuis (Antwerpen: Maklu, 1992), 110-114. 23 De Bruyne, op.cit., 192.

24 Van Valckenborgh, op.cit., 222-229.

25 Robert Kruithof, “La théorie de l’apparance dans une nouvelle phase”, Revue Critique de Jurisprudence Belge (1991): 80.

26 Hugo Vandenberghe, “De grondslag van de contractuele en extra-contractuele aansprakelijkheid voor eigen daad”, Tijdschrift voor Privaat Recht (1984): 147. 27 Van Valckenborgh, op.cit., 230-231.

28 The Cour de Cassation is the Supreme Court in Belgium. See for example: Supreme Court, December 7, 1973, Rechtskundig Weekblad (1974): 1597; Supreme Court, April 8, 1983, Rechtskundig Weekblad (1984):




According to one interpretation (verfijningstheorie), concurrence of liabilities is

possible when: (1) the behavior of one party constitutes not only a breach of contractual

obligations but also a breach of a general (ie, non-contractual) duty of due care, and, (2)

the harm for which compensation is sought does not consist of the loss of the benefits that

were to be expected from the performance of contract or harm that is a consequence of

such loss.

Another, and more restrictive view (verdwijningstheorie), holds that a claim in tort

between contracting parties is only possible: (1) when the behavior on which the claim is

based does not constitute a breach of contract but solely a breach of a general (ie, non-

contractual) duty of care, and, (2) the harm for which compensation is sought is not the

result of or caused by an act that can (also) be qualified as a breach of the contract. 29

Whereas older case law30 and a predominant part of legal scholarship31 favored the

second reading of decision of the highest court in Belgium, recent decisions increasingly

seem to support the first and less restrictive view. The First Chamber of the Cour de

Cassation held in the Tiércé Franco Belge case that a contractor has a claim in tort when

an act of his co-contractor constitutes both a breach of contractual obligations and a

breach of the general duty of care.32 Thus, the harm for which compensation is sought will

determine the scope of recovery in tort between the contractors. Article 1149 BCC

stipulates that the creditor must be compensated not only for the loss that was actually

incurred but also for lost income (réparation intégrale du dommage). Due to this (broad)

wording, the requirement that a party has to suffer “not merely contractual losses” for a

164; Supreme Court, September 28, 1995, Arresten van het Hof van Cassastie (1995): 287; Supreme Court, September 29, 2006, Nieuw Juridisch Weekblad (2006): 946; Supreme Court, November 27, 2006, Rechtspraak Antwerpen Brussel Gent (2007): 1257. 29 For a discussion and further references see: Thierry Vansweevelt, Britt Weyts , Handboek Buitencontractueel Aansprakelijkheidsrecht (Antwerpen: Intersentia, 2009), 98-99; Bocken, Boone, op.cit., 41-48; De Bruyne, op.cit., 192-193.

30 Supreme Court, September 28, 1995, Arresten van het Hof van Cassatie (1995), 825; Supreme Court, May 23, 1997, Arresten van het Hof van Cassastie (1997): 563. 31 Alois van Oevelen, “De betekenis van het stuwadoorsarrest van het Hof van Cassatie voor het maritieme recht, bijna dertig jaar later”, in: Stouwers, naties en terminal operators het gewijzigde juridische landschap (Reeks Antwerpse Zeerechtdagen), ed. Eric van Hooydonk (Antwerpen: Maklu, 2003), 161-178; Hugo Vandenberghe, Marc Van Quickenborne, Steven Decoster & Koen Geelen, “Overzicht van rechtspraak 1979 -1984. Aansprakelijkheid uit onrechtmatige daad”, Tijdschrift voor Privaat Recht (1987): 1602.

32 Supreme Court, September 29, 2006, AR C.03.0502.N; Kristof Van Hove, “Noot onder Cass 29 September 2006”, Tijdschrift voor Bouwrecht en Onroerend Goed (2007): 67; Ingrid Boone, “Samenloop contractuele en buitencontractuele aansprakelijkheid verfijnd”, Nieuw Juridisch Weekblad (2006): 947; Eric Dirix, “Rechterlijk overgangsrecht”, Rechtskundig Weekblad (2009): 1756.




recovery in tort to be available, will rarely be met. Consequently, many authors assume

that the post-Tiércé Franco Belge case law is not likely to substantially affect the

concurrence of liabilities doctrine in Belgium. However, when contractual loss is strictly

interpreted as a loss of contractual advantages, claims in tort law between a shipowner

and a classification society might be more successful.33

An exception to the exclusion of liability in tort between contracting parties is generally

recognized when the act comprising the breach of contract also constitutes a criminal

offence. Having in mind that negligence causing physical injuries and harm constitutes

such an offence, a shipowner can bring a claim in tort against a classification society in

cases where such harm has been the result of a breach of the general (non-contractual)

duty of care or a violation of a statutory or regulatory rule by a classification society. 34

3. Contractual Liability of Classification Societies – The Dune Case

A recent Belgian case sheds more light with regard the contractual liability of

classification societies. The vessel Dune was bought by Mr. G. and Ms. A. on 7th April 1998.

The vessel was purchased and delivered to the claimants on the day that the contract was

signed. The contract stipulated that the vessel would be delivered under a certificate of

class. Prior to the purchase of vessel, a report on its condition was issued by Mr. V. On 7 th

April 1998, the classification society Unitas was requested to conduct a special survey of

the Dune, and, on 17th April 1998 Unitas issued a class certificate valid until 7 th April 2003.

A new engine motor was installed in the ship in 1999 and maintenance works on the

bottom boards were performed shortly after. Additional repairs were conducted on the

ship’s propeller in August 2001. During the cleaning of the bottom planking, it became

clear that both the planking and the bilge plank were damaged. The shipowners requested

Euroclass, a second classification society, to survey the vessel. The inspection report

concluded that the Dune was unseaworthy and recommended immediate repairs. On 11th

September 2001, the purchasers filed a claim against Bureau Veritas (previously

33 Vansweevelt, Weyts, op.cit., 105; Hubert Bocken, “Samenloop contractuele en buitencontractuel e aansprakelijkheid. Verfijners, verdwijners en het arrest van het Hof van Cassatie van 29 September 2006”, Nieuw Juridisch Weekblad (2007): 722-731. See in this regard also: Supreme Court, June 7, 2010, AR C.09.0586.N (unpublished). However, for a contradictory view: Supreme Court, November 27, 2006, Rechtspraak Antwerpen Brussel Gent (2007): 1257; De Bruyne, op.cit., 193-194, with further references. 34 Bocken, Boone, op.cit., 47-48; De Bruyne, ibid., 194.




Unitas35). An expert was asked to examine whether the issuance of certificate on the 7 th

April 1998 was considered justified, to which extent the vessel was seawor thy, and

whether the recommended works were necessary to render the Dune seaworthy again.36

The Commercial Court affirmed in its decision that a class certificate is an indication of

vessel’s state at the moment of completion of the survey. The survey has to be adapted to

the particular nature of vessel and its construction materials. Although the shipowner is

fully responsible for ensuring that the vessel remains seaworthy between all periodical

surveys, the Court relied on the expert report to conclude that the Dune must already have

been unseaworthy in 1998. As a consequence, the classification society was not entitled

to issue a certificate of class on 17th April 1998.37

More important are the considerations addressing the liability of classification society

Unitas. The Commercial Court held that a classification society is only obliged to apply the

normally required diligence (obligation de moyen) and is not necessarily required to

achieve a specific anticipated result (obligation de résultat). This conclusion is in line with

the older case law dealing with the contractual liability of classification societies in

Belgium.38 The claimants argued that Unitas did not comply with its contractual

obligations. The classification society did not conduct the maintenance works and

performed a negligent and careless survey of the vessel in April 1998. The report revealed

that the survey was inaccurate since Unitas did not carry out the necessary preparatory

works. The Court held that the absence of such preparatory wo rks implied that the

classification society did not use all reasonable efforts, and that Unitas was negligent

when issuing the certificate, especially considering that reliance on the report endangered

the life of the crew and the maritime industry in general.39

However, with regard the causal link between the harm and Unitas’ negligence, the

Commercial Court had doubts as to whether the unseaworthy state of the vessel was a

direct consequence of the negligent survey. In this regard, one needs to examine which

financial or economic advantages the shipowners would have obtained if the survey had

been done correctly. The report concluded that the Dune was already unseaworthy when

35 Dune case, Commercial Court Antwerp, September 20, 2006, A/02/04109 (unpublished).

36 Id. 37 Id.

38 See in this regard: Rukie, op.cit. 39 Dune, op.cit.




the certificate was issued in April 1998. The shipowners’ benefit would thus not h ave been

a seaworthy vessel but merely a certificate of class in case of seaworthiness or an absence

of it in case of unseaworthiness. As such, Unitas’ contractual default was not the direct

and proximate cause for the harm claimed by the owners. The loss would have occurred

anyway, even without the negligent survey. The lack of a class certificate would only have

had consequences on the conditions of sale of the vessel. These considerations could,

however, not be evaluated by the Court since the shipowners did not invoke it in their

argumentation (non ultra petita). Consequently, the claim for recovery against Bureau

Veritas was unfounded and dismissed.40

The case eventually made it to the Antwerp Court of First Instance and the Court of

Appeal. In the first instance, the Court held that Unitas/Bureau Veritas did not apply

reasonable efforts when it had surveyed the Dune. The classification society acted

negligently by issuing the class certificate without first completing the necessary

preparatory works. The Court of First Instance, nevertheless, concluded that the

unseaworthy state of the vessel was not a direct consequence of the negligent class

survey. Causation between the harm and the classification society’s negligence was thus

not proven, and the plaintiff’s claim for recovery was unfounded and dismissed.

The Antwerp Court of Appeal also concluded that the classification society was

negligent because it did not establish the necessary preparatory works. The plaintiffs

would not have bought the Dune if the class certificate had not been issued. They claimed

the repayment of the purchase price of vessel together with the repair and maintenance

costs, reduced by the price of the sale of Dune in July 2002. The Court had to examine

whether there was a causal link between the classification society’s negligence and the

plaintiff’s financial loss. According to Article 1150 BCC, a debtor is only required to

compensate for the contractual damage that was foreseen or foreseeable at the time the

contract was agreed, unless the non-performance of contract is caused by the debtor’s

intentional fault. In addition, Article 1151 BCC stipulates that, even in the case of

intentional non-performance of the contract, contractual damages concerning the loss

incurred by the creditor and the gain of which he was deprived, extend only to the direct

and immediate consequences of the non-performance of agreement. Against this

background, the Court held that the repair and maintenance costs to make the Dune

40 Id.




seaworthy did not constitute contractual damage recoverable by the plaintiffs. The Court,

however, concluded that it was beyond reasonable doubt that plaintiffs suffered

pecuniary loss because of the classification society’s negligence. Therefore, the

recoverable loss was estimated ex aequo et bono at €35.000.41

4. Conclusion

The Dune case is one of the few cases in Belgium addressing the contractual liability of

classification societies. The decision is in line with the conclusions of older cases dealing

with the liability of classification societies towards shipowners. Three major conclusions

can be drawn based on the analysis conducted in this paper.

Firstly, classification societies are obliged to survey vessels to the best of their abilities

and apply the normally required diligence and care when performing the survey

(obligation de moyen), without necessarily having to achieve a particular anticipated

result (obligation de résultat). Secondly, classification societies do not take over the

shipowner’s responsibility to provide a seaworthy vessel. Finally, a class certificate

cannot be used by the shipowner as an absolute proof of the vessel’s seaworthiness. 42

41 Dune case, Court of Appeal Antwerp, February 18, 2013 Nieuw Juridisch Weekblad (2013): 659-660 with annotation by Jan De Bruyne, “Aansprakelijkheid van classificatiemaatschappijen”. Also see the discussion in: De Bruyne, op.cit., 201-202. 42 For an analysis of case law in England and US, see: De Bruyne, ibid., 218-222.



15 Article | Corcione: Third Parties Protection…

Third Parties Protection in Carriage of Goods by Sea:

Theoretical Observation

Carlo Corcione *

ABSTRACT

Third parties protection has been an extensive issue for the shipping

community over the last century. Although this problem has been solved to

some extent in practice by various means of circumvention created by the

industry, it remains conceptually obscure. A substantial obstacle with third

party protection is the classic perspective of contract law, which considers

a contract to be a bilateral promise between the parties. However, it can be

argued that in the modern factual context of the shipping industry, where

third parties are the pivots of the business, the reliance perspective and a

particular aspect of reliance perspective related to third parties could be

an alternative way of looking at the issue de lege ferenda.

KEY WORDS

Third parties, Carriage of goods by sea, Vertical and Horizontal

integration, Contract theory, Consideration and Privity

1. Research Background

This paper concerns transport law de lege ferenda.1 The primary focus is placed on a

specific theoretical argument related to third parties protection in the carriage of goods

* Carlo Corcione is a PhD researcher in the carriage of goods by sea. He is an international commercial lawyer with both civil and common law background. He is the author of academic articles and speaker at international




by sea. From here, the paper advances the possibility of a reliance contract theory

perspective supplementing the justification of third parties protection in the current

carriage of goods by sea framework. The theoretical framework supporting the research

question relies on the new factual context of the shipping industry, wherein a third party

is no longer considered by the author to be external to arrangements, but rather an

intrinsic part of the scenario. This is due to the fact that, in the current factual context of

shipping, all parties working in concert (i.e, the carrier, the cargo owners, and third

parties) form a network of commercial and legal interests.

This paper adopts a macro-level perspective regarding the conceptual need for third

party protection (based on a factual-economic context). Suggestions are provided for a

new approach to third parties´ protection in carriage of goods by sea de lege ferenda. This

article draws on the author’s extensive research on the topic, much of which is still in

progress. The relevant research focuses on the legal context of third parties´ protection

(contracts, international conventions and domestic laws), and a broader exploration of

the rationale behind third parties´ protection.2 The main premise of the research in

general, and this paper more specifically, is that the protection of third parties in the

carriage of goods by sea has a theoretical grounding as well as business-based practicality.

Shipping today is substantially different to the industry that existed when theories of third

party protection were first developed, elaborated upon, and subsequently enshrined in

law.3 The transformation means that third parties are now an essential element of the

venture and can no longer be conveniently overlooked in the carriage of goods by sea. The

conferences. He holds the position of Teaching and Research fellow at University of Naples Parthenope and has been assistant lecturer in Shipping Finance at University of Westminster London .

1 Paper presented at the “Transport Law de lege ferenda: 2nd Annual Young Academics' Vision on Tomorrow's Transport Law” Conference, Faculty of Law, University of Zagreb, 13th 14th November 2014. The author would like to thank Dr. Mišo Mudrić and the University of Zagreb’s Faculty of Law for their continued efforts to keep the academic debate on international transport law alive, and for their hospitality. The author is also grateful to the anonymous referees for their extremely valuable comments. 2 By way of further support for the third parties protection de lege ferenda, the author is considering risk (specifically risk management and risk transfer) and justice (included but not limited to good faith and social fairness). 3 For more on the evolution of the role of third parties in the carriage of goods by sea, see Carlo Corcione, ‘The evolution of third parties protection in carriage of goods by sea: from the Himalaya clause to the Himalaya protection’, European Transport Law, (2014) 49 (3), 271.




same cannot be claimed for the law where third parties are still subject to the protection

that the main parties of the contract extend to them.4

In an effort to delineate the boundaries and scope of this research, the paper addresses

the issue of third parties protection only from the perspective of carriage of goods by sea,

especially from the two countries that have had the most engagement with the issue (ie,

England and the United States of America (US)). The paper also considers the effect of

current factual context of the shipping industry.5 Before a thorough analysis of this issue

can continue however, the issue in question must be clearly defined.

2. The issue

In order to delineate the issue, the meaning of “third parties´ protection in carriage of

goods by sea” has to be assigned.

2.2. Protection

In this context, protection means a legal framework that allows a third party to enjoy the

same protection as the main parties. In the carriage of goods by sea, this is usually

provided through a clause in a contract that refers to international conventions, such as

the Harter Act,6 the Hague7 and Hague Visby Rules8, the Hamburg Rules9, and the

Rotterdam Rules.10 The protection offered is typically twofold; a limitation of liability on

4 In the commercial venture, the contractual parties should be the foundation for the justification of third parties. In this specific case, the commercial venture is the transport chain, which has the carriage of goods by sea at its starting point. 5 Specifically, from the relationship between carrier and cargo interests. Therefore, the protection that the third parties can provide for themselves is not part of this research. Moreover, the paper confers specific attention to the multimodal sector rather than breaking bulk. 6 The Harter Act, 46 U.S.C. §§ 190-196 (1983), pertains to cargo transported from or between ports of the United States (US) and foreign ports.

7 The Hague Rules (1924), International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, signed at Brussels on the 25 August 1924, United Nations Treaty Series: 120.

8 The Hague Visby Rules (1968), a protocol to Amend the Hague Rules, United Nations Treaty Series: 1412.

9 The Hamburg Rules, United Nations Convention on the Carriage of Goods by Sea, Hamburg, 30 March 1978, United Nations (UN) United Nations Treaty Series: 1695.

10 United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, annexed to General Assembly Resolution 63/12.




cargo damage, and a time limit within which a claim can be pursued under international

conventions on the carriage of goods by sea.

Although beyond the scope of this paper, it is appropriate to mention that stemming

from international conventions regarding the carriage of goods by sea, a growing interest

in protecting third parties has emerged. This development can be identified when noting

the first attempt in the Harter Act merely considered anyone outside the relationship yet

the Rotterdam Rules arguably dedicate an extensive part of regulation to the third

parties.11 Problematically, the Rotterdam Rules focus on the protection of third parties in

what is known as “the maritime plus scenario” from a geographic perspective. Please note

that the author of this paper does not share the same school of thought.

2.3. Third parties

Within carriage of goods by sea, “third party” is not a term of art. This is largely because

there are many categories of third party, not just one. The pluralistic nature of the term

stems from dramatic changes to the way in which the carriage of goods by sea is managed

and organized. First, the various categories of third party have expanded substantially. At

the beginning of the twentieth century, a third party was invariably a master, a servant,

or a chief officer. Today, a third party could be anyone who helps the cargo moving ( ie,

stevedores, port terminal operators, freight forwarders, non-vessel common carriers,

etc.). Second, the relationship between these potential third parties and the job as a whole

has changed. Through vertical integration, many have become a part of carrier

corporation and through horizontal integration many have been subsumed within larger

entities (ie, terminal operators owned by the Chinese government,12 or large corporate

freight forwarders such as Amazon).13

11 See, amongst others: Francis Reynolds “The Hague Rules, the Hague-Visby Rules, and the Hamburg Rules” 7 MLAANZ Journal (1990). Rhidian Thomas. The Carriage Of Goods By Sea Under The Rotterdam Rules (Lloyd's List 2010), London (xxxvii and 421); Stefano Zunarelli “Elementi di novità e di continuità della regolametazione della responsibilità del vettore marittimo di cose nell’attività del gruppo di lavoro dell’UNCITRAL”, available at: http://www.aidim.org/pdf/rel_zunarelli.pdf (accessed on 2nd October 2013)

12 Two of the largest terminal operators worldwide according to the Lloyd’s List are Cosco and China Merchant Holding; both are state owned corporations of the People’s Republic of China , available at: http://www.lloydslist.com/ll/news/top100/ports-and-logistics/ (accessed on 3rd February 2014).

13 Reuters reports that as part of a logistic plan, Amazon is entering into the freight forwarding market http://www.reuters.com/article/us-amazon-com-freight-idUSKCN0US2YW (accessed on 1st June 2016).


http://www.aidim.org/pdf/rel_zunarelli.pdf

http://www.lloydslist.com/ll/news/top100/ports-and-logistics/

http://www.reuters.com/article/us-amazon-com-freight-idUSKCN0US2YW



In the absence of a standard or accepted definition within the sphere of the carriage of

goods by sea, the Contracts (Rights of Third Parties) Act 1999 is of some help. The Act

considers a third party to be anyone outside the contract. Moreover, the very nature of

carriage of goods by sea has changed. In its infancy, carriage was an easy line between two

points, tackle to tackle. Subsequently, this line moved ashore and extended from port to

port. Today, the carriage of goods by sea is often a door-to-door process involving many

third parties that have little or no relationship with the sea. The main issue arising from

this is that while the practice of carriage of goods by sea has changed, the law that governs

it is still firmly rooted in an outdated perspective.

3. De lege lata and the obstacle of the classic bilateral perspective

The law governing the carriage of goods by sea is largely international. The majority of

contracts, however, are regulated by English (and Welsh) and US law. Despite their

differing approaches, both jurisdictions have had problems and restricted third parties´

protection in the carriage of goods by sea.

Under English Law, the extension of protection from the two parties of a contract

governing the carriage of goods by sea to a third party has been an en dless and

evolutionary work in progress. The main conceptual problem is establishing justification

for the protection.14 This is particularly true when dealing with the longstanding

principles of privity and consideration within English law. In particular, under English law

the doctrine of privity states that only parties to an agreement can enforce it.15 This is

supported by the principle of consideration, which requires that an agreement must be

supported by consideration. Consideration requires that parties to an agreement have to

provide or promise to provide something of value to the service.16

14 That has also had an impact in practice.

15 On the topic of privity the leading case is Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] UKHL 1.

16 On the topic of consideration the leading cases are Thomas v Thomas [1842] 2 QB 851. Tweddle v Atkinson [1861] EWHC QB J57




Nonetheless, a century’s worth of case law has demonstrated that courts have to a

certain extent been willing to permit the use of certain tools (such as the Himalaya Clause)

and the trend seems to be steering towards extending the protection to third parties. 17

Without delving into extensive detail, relevant English case law suggests that there is a

lineage of authority supporting protection for third parties. This starts with the Elder,

Dempster & Co Ltd v. Paterson, Zochonis & Co Ltd,18 where the court accepted that although

the ship-owners may not have been privy to the contract of carriage between shipper and

charterer, they are entitled to the same protection. Following that, the Adler v. Dixon case19

(better known as the “Himalaya” case and lending its name to the Himalaya Clause),

distinguished the protection of third parties in a contract of carriage of goods by sea. 20

Further support comes from the Scruttons Ltd v. Midland Silicones Ltd case,21 in which

Lord Reid raised the problem of consideration in order to allow protection to third parties.

Additionally, in the New Zealand Shipping Co. Ltd v. A. M. Satterthwaite & Co. Ltd case22 the

Privy Council held that the consideration was the discharging of the goods by the

stevedore for the benefit of the shipper.

Turning the attention to domestic law,23 a salient example is the UK Contracts (Right of

Third Parties) Act 1999, which has substantially altered the attitude towards third

17 The meaning assigned to party autonomy (or interchangeably freedom of contract) is different from the meaning that it is usually found in literature, especially on carriage of goods by sea (ie, party autonomy is a choice of law doctrine that permits parties to choose the law of a particular country or sovereignty to govern their contract that involves two or more jurisdictions). 18 Elder, Dempster & Co Ltd v. Paterson, Zochonis & Co Ltd; [1924]

19 Adler v. Dickson (The “Himalaya”) [1954] 2 Lloyd's Rep 267. This was, in fact, a carriage of passenger case.

20 A general Himalaya Clause states: “It is hereby expressly agreed that no servant or agent of the carrier (including every independent contractor from time to time employed by the carrier) shall in any circumstances whatsoever be under any liability whatsoever to the shipper, consignee or o wner of the goods or to any holder of this Bill of Lading for any loss, damage or delay of whatsoever kind arising or resulting directly or indirectly from any act, neglect or default on his part while acting in the course of or in connection with his employment and, without prejudice to the generality of the foregoing provisions of this clause, every exemption, limitation, condition and liberty herein contained and every right, exemption from liability, defense and immunity of whatsoever nature applicable to the carrier or to which the carrier is entitled hereunder shall also be available and shall extend to protect every such servant or agent of the carrier acting as aforesaid and for the purpose of all the foregoing provisions of this clause the carrier i s or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all persons who are or might be his servants or agents from time to time (including independent contractors as aforesaid) and all such persons shall to this extent be or be deemed to be parties to the contract in or evidenced by this Bill of Lading. ”

21 Scruttons Ltd v. Midland Silicones Ltd [1961] UKHL 4, [1962] AC 446.

22 New Zealand Shipping Co. Ltd v. A.M. Satterthwaite & Co. Ltd [1974] UKPC 1. 23 Reference has to be made, inter alia, to the following: Catherine MacMillan, “A Birthday Present for Lord Denning: The Contracts (Rights of Third Parties) Act 1999”, The Modern Law Review (2003); William Tetley, “The Himalaya Clause – Revisited”, Journal of International Maritime Law, (2003) 9 (1): 40-64.


http://www.bailii.org/uk/cases/UKHL/1961/4.html

http://www.bailii.org/uk/cases/UKPC/1974/1.html



parties´ protection.24 Its significance is fully expressed by Tony Vlasto and Julian Clark

when they argue it must be acknowledged that rarely does an individual piece of

legislation override or indeed negate a previously essential principle of basic English

law. However, The Contracts (Rights of Third Parties) Act 1999 demonstrated that rarity

by removing the English law principle of privy of contract. The principle of privy of

contract had, however, been criticised by judiciary on a number of occasions, despite the

fact that it had been established law since the early 19th Century.25

On the other hand, historically, US case law has demonstrated a more relaxed attitude

towards third parties´ protection in the carriage of goods by sea, perhaps du e to the fact

that it did not have to deal with the problems of privity and consideration. However, the

courts’ approach to third party protection has varied over time; for example, from the of

Herd26 onwards, the courts have been very strict regarding third parties´ protection and

have granted it only in certain specific circumstances. As first reported clearly in the

Akyiama, the nature of the service must be maritime.27 In a similar case, a road haulage

company was not allowed to derive benefits from the Himalaya Clause as it was not

performing a “maritime function”.28

Secondly, there has to be a relationship between the carrier and the third party. Gebr.

Bellmer KG v. Terminal Services Houston Inc case argued that stevedores could not claim

the benefit from the clause as they were not directly employed by the carrier.29

Thirdly, the clause must be accurate. In this respect, the Acciai Speciali30 provides that

the Himalaya Clause can be extended to third parties only during the time that they are

acting in the course of their employment. Furthermore, they have to be construed and

limited to intended beneficiaries.

24 The merit of the Act is outside the scope of this article. However, only as a matter of reference, the author believes that it is arguable that the Act has “completely” removed the concept of privity and consideration but rather offers another way around the concept of privity and consideration.

25 Tony Vlasto and Julian Clark, “The Effect of the Contracts (Rights of Third Parties) Act 1999 on Voyage and Time Charter Parties” 25 Tul. Mar. L.J. (2000-2001) 519 (UK).

26 Robert C. Herd & Co. v. Krawill Machinery Corp., [1959] 359 U.S. 297

27 Akiyama Corporation of America v M/V Hanjin Marseilles [1998], 162 F.3d 571 28 Taisho Marine & Fire Insurance Co. v The Vessel Gladiolus [1985] 762 F 2d 1364, 2d Cir.

29 Gebr. Bellmer K.G. v. Terminal Services Houston, Inc., [1983] 711 F.2d 622, 5th Cir. 30 Acciai Speciali Terni v M/V Berance, et al. Defendants [2002] 181 F.Supp.2d 458.




Although the efforts of national and international communities31 involved in

international trade have allowed protection of third parties in practice, the classical

understanding of contract law continues to provide a theoretical obstacle. The classical

theory of contract law is derived from the study of how individuals and businesses

construct and develop legal agreements and, to put it in basic terms, is based on the idea

that party A will promise to do this, if party B promises to do that.32

If only one party offers consideration, the agreement is not a legally binding contract.

Something must be given or promised in exchange or return for the promise. In light of

this, the classical approach can only take privity and consideration into account. A party

can only enforce a contract if they have provided consideration. Although these principles

of privity and consideration are overridden in practice within the world of carriage of

goods by sea, they still have conceptual force and consequently do not allow full

protection for third parties. Moreover, apart from the strict rules of privity and

consideration, the bilateral classic approach to contract theory also relates the protection

only to the formal parties of a contract totally excluding the third party.

Indeed, as the above text regarding the US mentions, third parties are allowed

protection only in specific circumstances where they demonstrate that they are related to

the carrier, perform a certain kind of service, or if their name is specifically written in a

contract. This paper does not argue that this is not fair. It argues that there can be

exceptions in some fields, and carriage of goods by sea is one of them. As mentioned above,

the degree of protection offered to third parties is always closely linked to the protection

of main parties to a contract. As a result, the industry has evolved certain “tools” (such as

agency and implied contracts) in order to facilitate third party protection. However, the

shipping industry has moved forward and a new context has been delineated.

4. The current shipping factual context

Originally, the problem in carriage of goods by sea laid in the allocation of risk b etween

carrier interest and cargo interest. In practice, however, carriage of goods by sea no longer

31 It appears that the International Institute for the Unification of Private Law (UNIDROIT) seems to follow the same tendency about protection of third parties and freedom of contract for the parties in extending the protection on third parties. 32 It has its foundation in concepts of financial and economic conduct.




revolves around a bilateral relationship (even if contracts tend to suggest that it does). On

a simple level, it is true; a carrier and a shipper enter into a contract for the carriage of

goods. Nevertheless, other parties soon become involved in order to perform the job.

Firstly, and as a fundamental component of any framework de lege ferenda, legislators

must consider the impact that shipping has on the global economy and vice versa.33 Martin

Stopford contends that the transport industry has been instrumental in transforming the

world’s economy from national to global.34 He goes on to suggest that globalization has,

in turn, caused profound changes to transport systems. This consequently demands a

different outlook. As stated by Stopford, a transport chain can comprise many links and

often the maritime aspect is of a lesser input, be it in terms of time, distance, cost or

otherwise. However, the shipper must seek to create a superior yet more cost effective

complete transport package embracing the whole project and journey from source to

delivery destination. This potentially includes a plethora of transport modes beyond

purely that of a maritime nature.35

It is hard to dismiss Stopford´s pint and thus it follows that carriage of goods by sea is

no longer a contractually bilateral sector. It is unequivocally a network sector.

Adopting a broader perspective, the importance of third parties in the shipping sector

can be shown in different ways (as analyzed below).

4.1. Costs

Traditionally, carrier and shipper would base their costs of carriage of goods by sea

mainly on freight calculations. Now, with a multi-modal market, these costs are no longer

bilateral and must incorporate, for example, terminal handling charges (THC).36 The

shipper usually pays these as part of the carriage costs. Thus, from the shipper’s

33 William Tetley, “Uniformity of International Private Maritime Law-The Pros, Cons, and Alternatives to International Conventions-How to Adopt an International Convention”, International Maritime Law Journal, (1999-2000), Tul. Mar. L.J. 775.

34 Martin Stopford, Maritime Economics (Routledge 1997). 35 Stopford, id.

36 Nowadays, it seems to be multilateral or actually switching from carrier and shipper to carrier and third parties (especially terminal operators).




perspective, costs emanating from a carrier on the one side and associated third parties

on the other are considered indistinguishable.37

4.2. Vertical integration

A drive within the industry to take advantage of economies of scale has created a

significant amount of vertical integration. In the shipping industry, vertical integration

essentially means the expansion of a firm upstream or downstream. From the perspective

of a corporate structure, this integration represents a relationship between third parties

and other parties to the venture. That is to say, from a corporate perspective, shipping

companies and third parties are often part of the same organization.

4.3. Horizontal Integration

Economies of scale have had a huge impact from the perspective of third parties as well.

The result has been a substantial degree of horizontal integration that gives third party

companies (such as the firms who operate big terminals) tremendous negotiatio n power,

in turn rendering them very competitive. Furthermore, modernization of the port’s role

has had a huge impact. Stopford argues that whilst the merchant fleet is an important link

in the chain of transport, it is obvious that ports represent an imperative interface in that

chain between land and sea. Ports are the locations where goods are actively handled,

usually several times over. This activity was always blatant in the times of cargo liners

and tramp steamers, when ports were over-subscribed and therefore extremely active in

the course of the unloading, storage and loading of goods.38

The new transport network requires the port to operate not simply as a place for goods

to be loaded and discharged, but also to be an integrated “nodal space” between land and

sea.

4.4. Impact of consumer need

37 Especially in port-related transactions. 38 See generally Stopford op. cit.,




Song and Panayides define supply chain management by stating that in order to improve

and elevate the efficiency of the supply chain as a whole, strategic co-ordination of

systems and functions must be adopted and harnessed by each organisation within the

chain, thus ensuring that each organisation's input enables and provides a

seamless, secure and cost effective supply chain.39

Therefore, from a consumer’s perspective third parties are totally involved in the

carriage chain. They cannot be treated as external to the process. In a consumer -oriented

market such as this, the supply chain is ideally a continuous linked chain, which in itself

has had an impact on the extent to which third parties have become integral to the

carriage of goods by sea.

In light of the above, this paper argues that the carriage of goods by sea relies on a

network of commercial interests and that it would be outmoded to consider it a function

of a bilateral relationship. Therefore, the legal protection of third parties ought to move

from a bilateral perspective (where third parties try to benefit from the legal protection

enjoyed by the main parties) to a network-based understanding of protection. A network

in this case can be defined as a group of agreements with the same mutual goal and where

each agreement in the network contributes to the achievement of that goal.40

This new factual context needs a fresh legal framework to deal with the members of

this network. This framework should not be subject to the concepts of privity and

consideration, and above all should not define the legal entitlements of third parties

simply in accordance to the wish of the main contractual parties. Discussions of how such

a framework could or should be implemented lie beyond the realm of this paper.

Nonetheless, this paper seeks to advance a perspective that could be applied irrespective

of the method of implementation chosen being de lege ferenda.

5. De lege ferenda and the reliance perspective

The economic side of analysis has highlighted the following: allocation of risks is shifting

from the carrier and shipper to the carrier and third parties; shippers are negotiating “ All-

39 Dong-Wook Song and Photis M. Panayides, “Global supply chain and port/terminal: integration and competitiveness” Maritime Policy and Management (2008) VOL. 35, NO. 1, 73–87. 40 Adams and Brownswords “Privity and the concept of a network contract”, 10 Legal Stud. 12 (1990).




In” rates (sea freight, surcharges and THC); final customers need one chain and; third

parties are gradually becoming more powerful in the industry.

The transport industry has changed and the law (nationally and internationally) is

gradually conforming, leaving the academia the unsolved theoretical problem of

justification for third parties protection. Taking all of the above into account, this paper

argues that considering the current shipping context, the reliance perspective (more than

the classic bilateral one) could be applied to the interpretation of third parties´ protection

in the carriage of goods by sea.

The argument has evolved to state that third parties working in a network should enjoy

protection because they are undisputedly part of the chain and not because the main

parties merely extend protection to them. There are many ways to implement the noted

proposal but unfortunately, such discussion would go beyond the scope of this paper.

Instead, a general approach has been offered and this paper argues that the reliance

approach to contract law is more appropriate than its classical counterpart for the

following reason.

Firstly, please note that explaining reliance is never an easy task. Reliance can mean

different things. In fact, its definition is so varied, it could be rendered meaningless. 41

Moreover, it has been reported that reliance tends to become subservient to promise in

the law of obligations.42 Reliance theory43 is based on assumption of responsibilities: “We

will proceed on the assumption that I am to do this and you are to do that, and although I

do not promise that I will do this, I accept responsibility for your reliance on the assumption

that I will, and you will accept responsibility for my reliance in the same way.”44 The effect

of an assumption of responsibility is to subject the contracting party to a contingent

liability in order to satisfy the reliance interest, but not a duty to carry out the

performance specified in the contract.45

41 Victor P. Goldberg, “Protecting Reliance”, 114 Colum. L. Rev 1033 (2014).

42 Alfred Cockrell, “Reliance and Private law”, 4 Stellenbosch L. Rev. 41 (1993). 43 It has to be said that the reliance theory is less straightforward and more complicated and therefore less travelled by than the classic one.

44 Peter Jaffey. “A new version of the reliance theory”, available at:

http://bura.brunel.ac.uk/bitstream/2438/4166/1/Reliance%20theory%20of%20contract.pdf (accessed 1st June 2015). 45 Jaffey, id.


http://bura.brunel.ac.uk/bitstream/2438/4166/1/Reliance%20theory%20of%20contract.pdf



One type of case where reliance may be better defined and understood is where A, by

means of an exemption clause, assumes responsibility, as it were, for any liability that C

might incur to A through tort. The reliance approach could work in cases of carriage of

goods by sea. Giving an example: A makes a contract with B by which they agree a benefit

for C. A makes an agreement with C to assume responsibility for C’s reliance on the

performance that B has been contracted for. Applying this to a normal carriage of goods

by sea scenario: Carrier makes a contract with Shipper by which they agree a benefit46 of

a third party. Carrier makes an agreement with the third party to assume responsibility

for third party’s reliance on the performance that the Shipper has been contracted. In this

case, a third party could be part of a circle of protection, merely relying on the contract.

Although it might appear extreme, this approach could be supported by the justification

in the current shipping scenario where third parties are quite necessary and their

protection difficult to debate.

Historically, justification for protection has always been linked to the benefits enjoyed

by the main parties: vicarious liability, commercial convenience, insurance, etc. The time

has come, however, to consider a more modern justification; namely, that the third parties

rely on the contract. It seems inadequate that a third party might be excluded from a

contract simply because a specific clause has not been written, or due to the fact that there

has not been a strong relationship between the carrier and third parties, or because the

third party’s performance is not maritime in nature. If with de lege ferenda the balance is

tipped away from the benefit of the parties and toward the benefit of a third party, the

third party might receive legal protection without having to rely on a contractual device.

6. Final remarks

A contract can be a complicated mechanism to protect parties. In a specific field, such as

carriage of goods by sea today, it is not fair to limit the legal protection to the parties that

are formally part of the contract. Shipping in 2016 is based on multiple relationships and

transactions. Third parties have substantial risks in that specific contract although they

are not formally part of the contract. Owing to the precise wording/type of contract

employed in the carriage of goods by sea and especially to the contr actual party that is

46 For instance, an exclusion or limitation of liability clause.




responsible for the venture, the maritime operation can render fundamentally different

results.

Undeniable, shipping contracts and especially in the carriage of goods by sea are

increasingly expanding to include third parties´ protection. In addition, international

conventions regarding carriage of goods by sea and domestic law (arguably in the merit)

present the same inclination. The bilateral relationship under the classic theory seems

inadequate and the reliance approach tackles the issue more effectively in this context.

The author believes that the fulfilment of a contract by performance in favor of third

parties satisfies not only the contracting party's reliance interest, as it has been perceived

so far, but also the third parties’ interest in receiving the performance. This paper does

not seek to offer concrete proposals for a shift in the law of private maritime law or

domestic law but rather to highlight an important theoretical observation; namely, that it

is time to consider third parties as intrinsic to the carriage of goods by sea and not as

external agents. Thus, an approach based on the reliance (rather than classical) theory of

contract law, which considers a contract of this sort not as a bilateral promise, would

surely help.



29 Review | Huybrechts: Rotterdam Rules…

Olena Bokareva – Multi-modal Transportation under the

Rotterdam Rules: Legal Implications for European Carriage of

Goods and the Quest for Uniformity

Book Review1

Should we split the Rotterdam Rules into a binding “Maritime” part and a

“soft law” part for the remaining multi-modal aspects?

Marc A. Huybrechts *

After a lengthy, solid and detailed analysis of actual and modern transport law, Olena

Bokareva comes to the – if not daring, at least surprising – conclusion that maybe one

ought to split the Rotterdam Rules because obviously so many nations are hesitant to sign

and ratify the Convention. Such a split might overcome these hesitations. Indeed, she

states: “Assuming that the Rotterdam Rules, and its maritime plus regime, may not achieve

universal acceptance, one option may be to pursue the partial mandatory approach…”.

It is quite likely that the Convention would get enough support if it was just a sea

carriage convention, representing a refinement and a streamlining of the existing Hague,

Hague-Visby and Hamburg Rules. The proposal to split the Convention into two parts may

achieve a better outcome. The mandatory provisions will cover port-to-port

transportation, which will also include maritime performing parties and all those

operating in the port areas. The optional protocol will provide for a further possibility to

enter into a door-to-door contract. The multi-modal transportation provisions would be

* Marc A. Huybrechts (Institute for Transport and Management, Antwerp (ITMMA), University of Antwerp, Belgium) graduated as Doctor of Laws at the Catholic University of Leuven and obtained a LL.M degree from Berkeley Boalt Hall (Cal.). At present he is off counsel in the Elegis law office. In 2005 he was appointed as auxiliary justice at the Antwerp Court of Appeal. Since 2006 he is an arbitrator in the International Maritime Conciliation and Mediation Panel (London). He is the editor for transport law of the Encyclopaedia of International Law (Kluwer publishers). He is a titular member of the CMI and has published numerous articles and books on comparative and maritime law.

1 More information available at: Lund University portal, https://lup.lub.lu.se/search/publication/34fad3 3b -ae08-4df4-a09f-b157d345e7d8 (accessed on 1st June 2016).


https://lup.lub.lu.se/search/publication/34fad33b-ae08-4df4-a09f-b157d345e7d8

https://lup.lub.lu.se/search/publication/34fad33b-ae08-4df4-a09f-b157d345e7d8



put into a separate instrument such as a protocol, and it would only be mandatory for

those states that accepted it.

The fundamental research by Olena Bokareva resulted in a PhD thesis of 374 pages,

which she brilliantly defended during her public examination at the Lund University in

April 2015. After a lengthy and intense public defense, the jury unanimously granted her

a well merited PhD degree.

Olena Bokareva is a Ukrainian scholar who left her country to continue her studies in

Sweden at the Lund University but she also was a grantee at the Max Plant Institute in

Hamburg and she spent also considerable time at the Erasmus University in Rotterdam,

working under the guidance of Professor Frank Smeele, Professor Krijn Haak and

Professor Gert-Jan van der Ziel. Her PhD thesis at the Lund University was supervised by

Professor Proshanto K. Mukherjee and Professor Lars-Göran from the University of

Goteborg. Olena Bokareva is also well known for her authorship of the monograph on

Ukrainian transport law, published in the International Encyclopedia of Laws as well as a

number of articles published in international legal journals such as the International

Journal of Maritime Law.

In engaging in this research project, Olena Bokareva started from the many various

diverse transport treaties that are applicable and which govern shipping and

transportation in our present commercial world. Against the above background, the

principal purpose of her thesis is to examine the legal regime of multi-modal

transportation at international and regional levels in the light of the emergence of the

Rotterdam Rules.

Her starting point goes back to a factual observation. The decline of manufacturing

activity in major developed countries coupled with rising economies in the Asian

continent contributed to the globalization of markets. In her introduction, the author is of

the opinion that in this particular context globalization refers to the increasing

geographical scale of economic, social and political interactions, which include

international trade and related import and export of goods. Globalization of markets has

had a profound effect on the world economy over the past decades, and in particular on

the exchange of goods. This has resulted in the increasing interconnectivity of national

economies and the growing number of international contracts and, undoubtedly the

above mentioned circumstances have had significant implications for the carriage of




goods globally. She reminds us of an old truth: the scale of growth and shipping is

evidenced by the fact that around 90 % of the world trade continues to be sea -born.

Shipping is known as the most international of all industries and maritime transport is

considered to be the largest service provider in international trade. And she, continues:

global trade requires fast and cheap transportation and a wide range of auxiliary services.

Modern carriage of goods does not solely involve transportation from one place to

another. Rather, it is an integral part of a complex distribution process where the ultimate

goal is to meet customers’ demands and expectations, and deliver goods in time without

loss or damage. Her observations are quite to the point: the preferences of the cargo

interests have changed as well. What matters most is not how the goods are carried, but

how timely and securely they are delivered. She observes: “… the tendency has prompted

shipping companies to reconsider their traditional services from port-to-port and offer

transportation and additional services on land or at intermediary points from door-to-door.”

The advent of the container as a standardized storage unit has transformed the whole

system of how goods can be loaded, transported and discharged. In this way the goods are

carried in one container all the way from the manufacturer to the final destinatio n to a

customer. This has led to the practice of using a single contract of carriage for goods

carried by different modes for the sake of predictability and legal certainty. Multi-modal

transport is a contemporary reality in intercontinental trade. The use of containers has

caused three kinds of problems: technical, economic and legal.

As far as legal problems are concerned, Olena Bokareva is of the opinion that the legal

problems are numerous and delicate and many of them still remain unresolved, despite

global concerted efforts. Her starting point is to revisit and critically examine the current

state of all international legal regimes on the subject matter. Her journey will take us from

the Hague Rules up to the Rotterdam Rules – the future law – if ever these rules obtain a

sufficient number of ratifications. It is a fact that the present day transport conventions

are not able to resolve adequately the legal disputes involving claims for loss or of damage

to goods or delay in transit that occur in an area of modern technology and transport

logistic. She observes that most of the conventions dealing with carriage of goods cover

only one specific mode of transport while an applicable carriage convention which deals

with multi-modal transportation is still lacking.




That brings her to the United Nations Conventions on Contracts for the International

Carriage of Goods wholly or partly by Sea signed in Rotterdam on the 23rd of September

2009. One of the primary objectives of the Rotterdam Rules is to effectuate the collapse of

the existing international sea carriage regimes as well as a significant number of national

hybrid regimes, and replace all of them with a modern contemporary convention that

takes account of recent trends in the growth of containerized multi-modal transport on a

door-to-door basis and corresponding impact of the logistics industry on world trade. The

Rotterdam Rules are intended to govern the whole contract of carriage, which comprises

a sea-leg but also including those segments that are to be performed by road, rail, air or

inland waterways and accordingly the Rotterdam Rules have introduced the new concept

of a maritime “plus” convention.

Considering that at present there are different levels of policy making such as

international, supranational and national decision makers, achieving uniformity in the

applications and interpretations of international conventions is not an easy matter. And

one such international actor is the European Union, which is becoming increasingly

powerful and which has created its own legal regime. The internal market of the European

Union is constantly growing and that demands more trade and movements of goods

among its Member States and neighboring countries, and so the author comes to the

conclusion that it can be inferred from this that the European Union will continue to

develop its transport infrastructure, focusing on modal split by reducing the friction costs

and making transport operation more environmentally friendly.

This is her starting point and field of reference. She announces that she will concentrate

on two main targets: (a) to critically examine and evaluate the advantages and

disadvantages of the multi-modal regime under the Rotterdam Rules, and, (b) to analyze

the maritime plus regime of the Rotterdam Rules in terms of the potential impact of any

European Union transportation regime on European State parties to the Rotterdam Rules.

Her analysis will concentrate on the following subjects: 1. The conflict of conventions

dimension on the multi-modal regime of the Rotterdam Rules in the European context; 2.

The new concept of the maritime performing party and provisions for the “Himalaya

protection”; 3. Liability for delay in delivery in multi-modal transportation; 4. Shippers’

liability; 5. Attainment of uniformity or harmonization globally and within the European

context; and, 6. Interpretation of international transport conventions by the Courts of




Justice of the European Union with the main focus on the Montreal Convention. To be sure

this a truly ambitious project which the author brilliantly covers in her thesis.

The quest for uniformity is a recurrent issue and the late professor William Tetley Q.C.

has repeatedly complained about the lack of uniformity and made suggestions for further

harmonization.2 Professor Tetley's point was: “The lack of uniformity is due to the lack of

adoption of major International Maritime Law Conventions… The lack of uniformity in

respect of International Maritime Law is disheartening for those who believe in uniformity,

particularly in comparison with Air Law, which started far behind but has now gone far

ahead of Maritime Law.” The thesis of Olena Bokareva substantially promotes uniformity

in Maritime Law.

Will her fundamental research and the conclusions of her thesis convince the sovereign

nations and non-believers that the Rotterdam Rules are the right step forward? It is

certainly to be hoped as at present only Spain, Congo and Togo have ratified the rules.

Maybe a slight progress is in sight as the maritime law associations of Denmark and

Norway have recommended their governments to ratify. Also the United States State

Department has completed its ratification package for the Rotterdam Rules (see the

website of CMI under Rotterdam Rules / recent developments).

Olena Bokareva informs us that her research will apply a combination of research

methods such as the dogmatic method, the comparative method and the qualitative

research method. With the qualitative research methodology, she wants to inform the

reader that she will limit herself to certain topics in the vast field of transport law. She will

consider the existing law and the future law (de lege lata and de lege ferenda). Her

comparative law method has to be understood in a specific or restrictive meaning. She is

not comparing the legal systems of various countries but the comparison is situated at

comparing the various transport treaties. She will be concerned with European legislation

whereas regarding domestic law, her thesis is mostly concerned with English Law,

particularly the judgments of the Court of Appeal of England and Wales and the House of

Lords, now replaced by the Supreme Court of the United Kingdom. On occasions there will

2 William Tetley, “Uniformity of International Private Maritime Law, the pro’s, con’s and alternatives to international conventions – How to adopt an international convention”, Tulane Maritime Law Review volume 24, L.J. (2000): 775-856.




be a reference to a court case in the United States or if needs be, she refers to a German

case but French Case Law is completely ignored.

This thesis is not only a challenging research project on the emergence, the content and

the future application of the Rotterdam Rules, but also has resulted in a very informative

textbook on transport law in general. Olena Bokareva has spared no effort to give a full

account of the law on carriage of goods by sea, over the early developments from the U.S.

Harter Act of 1893, the Hague Rules of 1924, the Visby Protocol of 1968, the SDR Protocol

of 1979 ad the Hamburg Rules of 1978. She deals separately with the carriage over land,

by rail, by road and air carriage and she describes the evolution of regimes for multi-

modal transportation, starting from the early initiatives to the failed Multi-Modal

Convention of 1980 and the soft law that resulted ever since, such as the UNCTAD/ICC

rules, 1992. Olena Bokareva comes to the overall picture, based on her examination, that

in the various existing transport treaties there are only limited provisions in re lation to

multi-modal aspects. At the same time, she perceives the inability to achieve the desired

uniformity and legal certainty at a global level and at a European level.

In chapter 3 the candidate examined the various legal aspects of multi-modal

transportation by analyzing the two opposing liability regimes, namely the uniform

liability system of the failed United Nations Convention of 1980 and the network liability

system, which obviously enjoys the preference of the transport market and which is also

the retained solution in the Rotterdam Rules.

Part II of the thesis contains the chapters 4 through 6 dealing with the Rotterdam Rules.

The author examines the coming into being of the rules and their legislative history with

a gestation period of some 10 years in the background of numerous meetings between

New York and Vienna and with thousands and thousands of documents to go through. The

author discusses the carriers’ obligations and liabilities in the maritime plus context and

especially the liability of the carrier for other parties involved in the carriage contract with

the special novelty of the “maritime performing party”. This analysis is also coupled with

the discussion of the “Himalaya protection” afforded to the maritime performing parties.

Evidently also the limitation of liability per package is discussed as well as the liability for

delay.

In chapter 6 she deals with the obligation of the shipper and his liability in which the

reader is informed about the "documentary shipper", which is also a novel concept in the




Rotterdam Rules. In fact, this section on the liability of the shipper is a novelty in itself,

whereas it strikes that the liability of the shipper is unlimited. It is hard to understand that

the carrier and the maritime performing parties can invoke the benefit of liability in case

of damage whereas the shipper cannot. This chapter finishes with a discussion of the

volume contract concept, which is also to be seen as a major breakthrough or even a

breakthrough with revolutionary aspects. One could raise the question whether the

concept of the volume contract, allowing greater freedom of contract, is not the

introduction of the Trojan horse into modern Transport Law?

Part III of the thesis discusses international uniformity and harmonization. This is an

exceedingly interesting discussion about uniformity as differentiated from

harmonization. The author discusses the various methods of the unification process

either through binding treaty law, or through the creation of soft law. Her mass ive

discussion, well documented by the relevant footnotes on "soft law" is in itself a

remarkable piece of legal analysis.

This discussion is a good step up for the last chapter of part 3, namely the regional

harmonization of carriage of goods within the European framework. The thesis offers us

a good refresher course on European Law to start with. The thesis discusses two highly

controversial cases by the European Court of Justice, namely the “Mox plant” case,

involving Ireland and its proceedings before the International Court of Justice and the

“formidable” “Intertanko” decision – formidable on account of its one-sided reasoning by

the European Court of Justice. In that case, the Court refused to check the compliance of

the European Directive 2005/35 with the MARPOL Convention Rules, MARPOL being part

of public international law, to which all European Member States are a party, but not the

European Union as such. The examination of jurisprudence of the European Court

continues with a number of European Court cases which stands in a very strained relation

with the Montreal Air Law Convention.

In chapter 9 Olena Bokareva comments on how to integrate and accommodate the

Rotterdam Rules in the framework of multi-modal transportation.

Part IV of the thesis offers us a summary and conclusions. Here the author will move

from the “lege lata” to the “lege ferenda”. The claim of the author is that the Rotterdam

Rules were possibly a little bit overly optimistic and ambitious in trying to solve too many

adverse problems, with too many parties and stakeholders getting involved with various




conflicting views, making the Rotterdam Rules at best a rather complex compromise. The

author rightly perceives some serious hesitation if not resistance by a good number of

sovereign states, which makes it doubtful whether sufficient ratifications will be obtained

in a very near future. In order to save the rules, the author then makes a suggestion to

split the rules into a binding maritime part and a second part which will only have the

status of a protocol and considered to be soft law.

With due respect, but that suggestion, although it is the result of deep and detailed

examination and reflection, may pose more problems than it solves and could also

contribute to a further fragmentation of Transport Law with some states who would have

ratified the Rotterdam Rules in its entirety, whereas other states would only have ratified

in part! It raises also a question of public international law as states can only either ratify

a convention or reject it. They could opt out of certain clauses if the convention itself

allows such an opting out, as this is for instance the case with the LLMC Convention, but

no such a provision is at hand in the Rotterdam rules; it is all or nothing. In other word s,

if we want to achieve that possibility of splitting the Rotterdam rules, it would imply first

an entirely new negotiation round with all the participating UNCITRAL member states.

These technical difficulties and this comment however should not be a negative

reflection or cause prejudice to the overall merits of the thesis. It is a most impressive

scholarly and informative study which offers us a lot of challenging insides in multi-modal

transportation, past, present and future and the thesis deserves a lot of credit and

appreciation.



37 Event | Battistella: Ravenna Research Seminar

4th International Research Seminar in Maritime, Port and

Transport Law

Vincenzo Battistella *

The University of Bologna, School of Law (head organizers: Prof. Stefano Zunarelli and Dr.

Massimiliano Musi), in collaboration with the Institute of International Shipping and

Trade Law (ISTL) (Swansea University), Universitat Autònoma de Barcelona (UAB),

Universidad de Malaga and Marmara University (Turkey), organized the 4th edition of the

International Research Seminar in Maritime, Port and Transport Law, 29th June - 3rd July

2015, in the city of Ravenna.1

The event provides a forum for post-PhD researchers and current doctoral students in

the field of maritime, port and transport law, from some of the most prestigious

universities in Europe and other countries, to present their on-going research and receive

feedback from renowned academics, namely Professor Rhidian Thomas, Professor

Ignacio Arròyo Martinez, Professor Pinar Akan and Professor Stefano Zunarelli. Moreover,

legal practitioners and advanced law students have participated actively at the

colloquium with interventions and questions.

During the opening ceremony, Mr. Mingozzi, deputy-mayor of the City of Ravenna,

empowered with Port functions, welcomed the audience, giving a captivating speech on

the international relations concerning the Ravenna Seaport and the support of the School

of Law in harbor activities.

Each seminar day began with a Lectio Magistralis delivered by one of the above

mentioned Professors with regard to the current or on-going issues, such as “Commercial

* Vincenzo Battistella is a teaching assistant at the Maritime Law Chair, School of Law, Alma Mater Studiorium – University of Bologna, Italy. He obtained the II Level Master Degree in Law and Econimics of the Sea from the Chamber of Commerce of Pescara – Research Centre for Fishery and Navigation Law – and University of Teramo School of Law, during which he has attended lectures at the Aegean Institute of Law of the Sea and Maritime Law in Rhodes, Greece. He is a keen speaker, having recently presented a paper at the IX European Colloquium of Maritime Law Research 2016 hosted by University of the Basque Country, Spain .

1 More information on the Conference is available at: Zunarelli Studio Legale Associatio portal, http://www.studiozunarelli.com/en/events/4th-international-research-seminar-in-maritime-port-and-transport-law-ravenna-29-june-3-july-2015/ (accessed on 1st June 2016).


http://www.studiozunarelli.com/en/events/4th-international-research-seminar-in-maritime-port-and-transport-law-ravenna-29-june-3-july-2015/

http://www.studiozunarelli.com/en/events/4th-international-research-seminar-in-maritime-port-and-transport-law-ravenna-29-june-3-july-2015/



custom, usage and practice” by Professor Thomas, “The reform of the Turkish Commercial

Code” by Professor Akan, and the “Jurisdictional agreement and usage in international

trade” by Professor Arròyo.

The afternoon was reserved for international Ph.D. students and young researchers

(from different universities across Europe and China), who delivered twenty-minute

presentations on their on-going research. Every presentation was followed by a 10-

minute discussion, chaired by Professor Thomas who kindly offered constructive

comments on the presentations.

The organizers arranged an opportunity for the participants to dine at rustic

restaurants where they could try the exquisite traditional cuisine of the Emilia-Romagna

region. Having this in mind, it has to be pointed out that the social part of such an

important rendezvous is not only achieved through networking opportunities aimed at

improving or extending each attendee’s international academic contacts in the field of

maritime, port and transport law, but also through the creation and development of true

relationships among academics who share common interests, both in the academia and

in the working and more practical environment.

The last day of the International Research Seminar was dedicated to the symposium

entitled “Port Regulation: the Present National Laws and the European Perspectives”,

where experts and professors discussed the latest developments with regard to this

controversial issue under Italian and European legislation.

Prof. Stefano Zunarelli and Dr. Massimiliano Musi kindly organized a closing dinner on

the last day of the conference in Ravenna’s finest and most traditional restaurant, where

participants could celebrate the end of this fantastic and successful event. The dinner also

provided an opportunity to discuss new points and various interesting perspectives

relating to the present and future of maritime law to be discussed at the next year’s

conference.



39 Event | Mudrić: IntransLaw

1st International Transport & Insurance Law Conference

Mišo Mudrić *

In October 2015 (15th-16th), the Faculty of Law, University of Zagreb, and the Croatian

Academy of Legal Sciences organized the 1st International Transport and Insurance Law

Conference – IntransLaw Zagreb 2015.1 The Conference gathered over 190 participants

from over 20 countries, with 108 institutions being represented during the Conference.

The IntransLaw 2015 Conference examined the EU transport law field and numerous

topical issues related to this wide and dynamic legal field. A special focus was placed on

the complex system of relevant international conventions and numerous amendments of

the national transport regulation due to the EU law harmonization. The main aim of

IntransLaw conferences is to respond to such issues and practical difficulties, and create

a forum for the dissemination and exchange of relevant information, knowledge and

experience between the public and private sector, between the profession and academia

and amongst all branches of transport. The participants included professional of all

profiles: carriers and operators from all modes of transport, transport infrastructure

operators, marine and transport insurers, transport financiers, public administration,

justice, international organizations, EU institutions, regulatory agencies, scientists,

attorneys, NGO’s and all other stakeholders interested in transport, insurance and the

related activities. The Agenda included parallel blocks and panel sessions, with over 30

presentations covering a wide scope of subjects prepared by leading Croatian and foreign

experts, three panel discussions on important topics for the industry (viability and

strategic guidelines in a time of economic crisis, the financing of transport, and,

specialization of the judiciary branch), and, a workshop on conducting efficient EU

legislation database searches.

* Mišo Mudrić is an Assistan Professor at the Chair of Maritime and Transport Law, Faculty of Law, University of Zagreb, Croatia. He has obtained his PhD at the Faculty of Law, University of Hamburg, as a Scholar of the International Max Planck Research School for Maritime Affairs, at the Max Planck Institute for Comparative and International Private Law, Hamburg, Germany .

1 More information on the Conference is available at: IntransLaw 2015 portal: http://www.intranslaw.eu/arhiva/zagreb-2015/ (accessed on 1st June 2016). The present notes on the conference directly utilize the information and data provided by the Conference organizers.


http://www.intranslaw.eu/arhiva/zagreb-2015/



Among the invited speakers and panelists, it is noteworthy to mention the following

distinguished colleagues from Croatia and abroad who have actively participated at the

Conference: Emily Dérogée-van Roosmalen, Member, Daily Board of the Dutch Maritime

and Transport Law Association (NL); Mario Vukelić, President, High Commercial Court of

the Republic of Croatia (HR); Andreas I. Chrysostomou, Director, Department of Merchant

Shipping Cyprus (CY); Dr. Petar Kragić, Tankerska plovidba d.d. Zadar (HR); Prof. Vesna

Tomljenović, Judge, General Court of the EU (LU); Mladen Cerovac, President, Competition

Council, Croatian Competition Agency (HR); Prof. Rhidian Thomas, Founder Director,

Institute of International Shipping and Trade Law, Swansea University College of Law

(UK); Ante Lažeta, Director, Croatian Civil Aviation Agency (HR); Prof. Stefano Zunarelli,

University of Bologna Faculty of Law; Attorney at Law, Zunarelli B&T International Law

Firm (IT); Igor Storchak, Senior Banker, Transport Team London, European Bank for

Reconstruction and Development (UK); Prof. Martin J. Davies, Director, Tulane Maritime

Law Center, Tulane University Law School (US); Dr. Ann Fenech, Attorney at Law, Fenech

and Fenech Advocates; President, Malta Maritime Law Association (MT); Dr. Simone

Lamont-Black, University of Edinburgh Law School (UK); Prof. Filippo Lorenzon, Institute

of Maritime Law, University of Southampton Law School (UK); Prof. Kristian Bernauw,

Director, Institute of Transport and Insurance Law, University of Ghent and Antwerp (BE);

and, Prof. Maria Victoria Petit Laval, Director, University Institute for Transport Law,

Jaume I Castellón University (ES).

In October 2017, the 2nd IntransLaw Zagreb 2017 conference – the overall theme being

the Transport Law Towards the Future – will take place,2 organized by the Croatian

Transport Law Association and Faculty of Law, University of Zagreb, with the Institute for

International Transport Law (IDIT) as the co-organizer, under the patronage of Croatian

Ministry of the Sea, Transport and Infrastructure.

Currently, the application procedure is open, and the key topics (although the

applications are not limited to these topics) include: NEW BUSINESS MODELS IN

TRANSPORT INDUSTRY TRANSPORT CONTRACT ISSUES (Contracts of carriage,

charterparties, storaging, freightforwarding, carrier’s liability, passenger rights

(throughout all transport modes) etc.); TRANSPORT FINANCING (Leasing, loans,

2 More information on the IntransLaw 2017 Conference is available at: IntransLaw 2017 portal: http://www.intranslaw.eu/ (accessed on 1st June 2016). The present notes on the conference directly utilize the information and data provided by the Conference organizers.


http://www.intranslaw.eu/


41 Event | Mudrić: IntransLaw

hypotheques and mortgages, securitisation, debt and equity financing in transp ort

industry, strategic determinants and limitations in transport investments, etc.);

COMPETITION LAW ISSUES IN TRANSPORT (Mergers, aliances, ownership and effective

control, state aids, PSOs, etc.); LEGAL REGULATION OF AUTONOMOUS VEHICLES

(Drones, self-piloted cars, third party liability, safety issues, data protection, etc.);

MODERN CHALLENGES FOR PORTS (New regulation for airports, Single European Sky,

legal status of seaports, peculiarities of nautical tourism and other special purpose ports,

etc.); DISPUTE SETTLEMENT, APPLICABLE LAW AND JURISDICTON (Court jurisdiction,

arbitration, mediation, applicable law in transport disputes, choice of law implications,

forum shopping, etc.); MULTIMODAL TRANSPORT DIGITALISATION IN TRANSPORT

(Electronic documents/e-transport documents, data protection, etc.); CLEAN AND GREEN

TRANSPORT (Intelligent transport systems, greenhouse gas emissions, road

decarbonisation (alternative car fuels), urban mobility, pollution liabilities,

environmental protection standards in transport, etc.); and, FUTURE CHALLENGES OF

TRANSPORT INSURANCE LAW LEGAL ASPECTS OF INSOLVENCY IN TRANSPORT SAFETY

AND SECURITY STANDARDS (Safety and security management systems in transport,

impact of the safety and security on the competitiveness of the industry, implementation

of safety and security regulations and human rights protection, legal implications of the

Single European Sky, the role of transport insurance, public transport, etc.) .




2nd Transport Law de lege ferenda: Annual Young Academics'

Vision on Tomorrow's Transport Law

Mišo Mudrić *

On the 13th and 14th November 2014, the Faculty of Law, University of Zagreb, hosted the

"Transport Law de lege ferenda: 2nd Annual Young Academics' Vision on Tomorrow's

Transport Law" Conference.1

This annual event was inaugurated in 2013, in Leuven, Belgium, hosted by the Catholic

University Leuven. The 1st TransLawFer Leuven 2013 Conference brought together 14

presenters from 13 different Universities around the Globe. The presenters, yo ung

academics starting, working on, or having just finished their doctoral studies, had the

opportunity to share the provisional or final results of their research, participate in a live

debate after each presentation, establish excellent connections, and widen their

knowledge of transport law. In addition, presentations were divided into a number of

panels, each moderated by a professor, practitioner or representative from the transport

and insurance industries. The moderators were asked to introduce the subject of the

presentation and moderate the discussion following each presentation. This method

successfully connected the academia with the practice, enabled the sharing of different

perspectives concerning a particular topic of interest, and deepened the discourse

between the two.

Within the TransLawFer framework, each speaker has an opportunity to talk for

approximately 25 minutes, followed by a 20 minutes’ discussion after each presentation.

This constitutes the key concept within the TransLawFer framework: the emphasis is

equally divided between the role of the audience and the role of the speaker. In order to

* Mišo Mudrić is an Assistan Professor at the Chair of Maritime and Transport Law, Faculty of Law, University of Zagreb, Croatia. He has obtained his PhD at the Faculty of Law, University of Hamburg, as a Scholar of the International Max Planck Research School for Maritime Affairs, at the Max Planck Institute for Comparative and International Private Law, Hamburg, Germany .

1 More information on the Conference, Conference Booklet and presentations are available at: 2nd TransLawFer Zagreb 2014 Conference portal: http://mmwebdes.wix.com/translawfer (accessed on 1st June 2016).


http://mmwebdes.wix.com/translawfer


43 Event | Mudrić: TransLawFer 2014

foster the development of transport law, one has to foster discussion, exchange of ideas,

criticism and acceptance of different views and concepts. A forum comprising at least 40

academics, practitioners and young researchers should serve perfectly that very purpose.

The key goal of the 2nd TransLawFer Zagreb 2014 Conference was to continue the

initiative hosted all over the World, with hopes that the TransLawFer Conference would

become an annual event. Over 20 different universities and academic institutions

participated at the Conference, with an impressive number of practitioners joining the

ranks of Conference speakers.

The 2nd TransLawFer Zagreb 2014 covered a variety of topics. The topics covered on

the first day of the Conference included: ship (Dr. Massimiliano Musi, “The Concept of

‘Ship’”; Shuo Liu, “Is Defining ‘Ship’ within the Context of Maritime Law a Losing Battle?”;

and, Dr. Jan Albers, “Current Issues Related to the Arrest of Ships” – moderated by Prof.

Jasenko Marin), cabotage, passengers and ports (Aniekan Sylvester-Akpan, “The European

Maritime Cabotage Law: Its Critical Deficiencies”; Dr. Arber Gjeta, “Legal Nature of Port

Authorities in Albanian Legislation”; and, Lawrence Dardani, “Recent Developments in the

Italian Regime of Limitation of Shipowners’ Liability” – moderated by Prof. Stefano

Zunarelli), environment and insurance (Federico Franchina, “The Seaworthiness Duty:

Marine Insurance and Marine Pollution Aspects”; and, Dr. Adriana Vincenca Padovan, “The

Amount and Scope of P&I Insurance Cover for Pollution Liabilities as One of the Aspects of

the Role of Marine Insurance in the Protection of Marine Environment” – moderated by Mr.

Lino Verbeke), liability (Dr. Mišo Mudrić, “Recklessly and With Knowledge that Damage

Would Probably Result”; and, Carlo Corcione, “Theoretical Framework of Third Parties

Protection in Carriage of Goods by Sea” – moderated by Prof. D. Rhidian Thomas). The

second day of the Conference examined the issues with regard to the following: the

Rotterdam Rules and connected issues (Belma Bulut, “Shipowner as a Maritime

Performing Party”; Dr. José Manuel Martín Osante, “Liability Regime of Carriers and

Maritime Performing Parties in the Rotterdam Rules”; and, Unho Lee, “A Prospect of

Electronic Transport Records: Present and Post-Rotterdam Rules” – moderated by Prof.

Gordan Stanković), road and rail transport (Melita Milenković, “Concession on Croatian

Highway and Directive 2014/23 EU on the Award of Concession Contracts”; and, Dr. Aitor

Zurimendi Isla, “Substitute Carrier in CIM” – moderated by Prof. Nikoleta Radionov), and

several other selected topics (Zoran Tasić, “Legal Aspects of Ship’s Delivery”; and Julia




Constantino Chagas Lessa, ”Who has the Liability in a Network of Responsibility?” –

moderated by Dr. Igor Vio).



45 Event | Lessa: LUMLPG

7th London Universities Maritime Law and Policy Group

Postgraduate Research Conference

Julia Constantino Chagas Lessa *

On 29th April 2016 the City Law School and the London Universities Maritime Law and

Policy Group (LUMLPG) hosted the Seventh Annual Maritime Law and Policy

Postgraduate Research Conference.1

The annual conference provides an opportunity for young academics to present their

research papers in a supportive and collegiate environment, and is usually attended by

students, academics, maritime lawyers and industry professionals from around Europe.

The one-day event was held at the City University London Campus and was divided

into six sessions with the following corresponding themes: “The Regulatory Challenges”;

“The Sea as Context”; “Risk Allocation – Comparative Law Analyses”; “Maritime Transport

Planning”; “Oil and Gas Challenges”; and, “Contractual and Commercial Challenges”.

One of the main features of this annual event is to provide an opportunity to follow the

progress of individual speakers’ research – who often attend the event more than

once. The University of Southampton’s PhD candidate, Debo Awosefo, is a good example

of this practice. She has continuously presented at the LUMPLG conference for the past

three years, allowing the audience to trace her progress with regard to her research into

the issue of sustainable development in the context of the International Maritime

Organisation (IMO) and the shipping industry.

* Julia Constantino Chagas Lessa is PhD researcher at the City University London. Julia's focuses on seafarers' employment rights and human rights in her research, in particular, the definition of 'abandonment of seafarer'. In 2010, Julia completed her masters in International Commercial Law at University of Westminster, with a dissertation on Intellectual Property Law. Julia is currently a visiting lecturer at the University at Westminster, where she teaches Law Relating to Payment Trade and Finance to Master Students. She also takes part teaching criminal law at City University London and is a member of the London Universities Maritime Law and Policy Research Group (LUMLP).

1 More information on the Conference is available at: City University London portal: http://www.city.ac.uk/events/2016/april/the-seventh-maritime-law-and-policy-international-postgraduate-research-conference-2016 (accessed on 1st June 2016).


http://www.city.ac.uk/law/research/london-universities-maritime-law-and-policy-research-group-lumlp

http://www.city.ac.uk/law/research/london-universities-maritime-law-and-policy-research-group-lumlp

http://www.city.ac.uk/events/2016/april/the-seventh-maritime-law-and-policy-international-postgraduate-research-conference-2016

http://www.city.ac.uk/events/2016/april/the-seventh-maritime-law-and-policy-international-postgraduate-research-conference-2016



The conference is a great opportunity for researchers not only to get familiar with the

research currently being carried out, but also to get acquainted with various current

maritime trends around Europe. For example, Elize Niemeijer’s (Erasmus University

Rotterdam) and Jhonnie Kern’s (University of Gothenburg) presentations on the issue of

wreck removal demonstrated how two separate research studies on the same topic can

be conducted in very different yet equally insightful manners. Also, Dr. Sarah Gahlen’s

(Lebuhn & Puchta – Hamburg) presentation entitled “Force Majeure and Force Majeure

clauses in international contracts – a comparative point of view” caused quite a stir, as UK

academics were surprised to learn that the German courts refer to Taylor v Caldwell

[1863] – a leading case concerning frustration of contracts – when deciding in similar

cases, demonstrating that maritime law in Europe is more interconnected than one might

think.

This year’s event was partially sponsored by the publisher Routledge. Routledge has

formed a partnership with the LUMLPG and offers valuable book discounts to the group

members.



47 Event | Battistella: AMLC

1st Adriatic Maritime Law Conference

Vincenzo Battistella *

In a pioneer initiative, the National Maritime Law Associations of Croatia, Italy and

Slovenia organized the first Adriatic Maritime Law Conference (AMLC). The Conference

took place from the 26-28th May 2016, in Portorož, Slovenia.1

This event aimed to provide an opportunity for the three Adriatic maritime law

associations to share opinions and considerations with regard to the unification of

maritime law. The unification of maritime law is also the main topic in the Comitè

Maritime International (CMI) agenda, and CMI member associations share the

responsibility of maintaining relevant ongoing discussion between the members. Taking

this under consideration, the AMLC was carefully scheduled three weeks after the CMI

New York Conference, allowing the opportunity to share knowledge arising out of this

important global maritime event.

The two-day event was divided into four sessions: the first two covered the legal status

of seaports within the EU – the Adriatic and Mediterranean Perspective. Mr. Giorgio

Berlingieri, President of the Italian Maritime Law Association and CMI Vice, chaired both

sessions. In addition, Berlingieri opened the Conference and, in his welcome speech,

addressed the developments and discussions that took place in New York, setting the

global panorama and setting the “tone” for the rest of Conference.

In the first session, Avv. Stefano Zunarelli, full professor of Navigation Law at Alma

Mater Studiorum, University of Bologna, Faculty of Law, gave an enlightening and very

* Vincenzo Battistella is a teaching assistant at the Maritime Law Chair, School of Law, Alma Mater Studiorium – University of Bologna, Italy. He obtained the II Level Master Degree in Law and Econimics of the Sea from the Chamber of Commerce of Pescara – Research Centre for Fishery and Navigation Law – and University of Teramo School of Law, during which he has attended lectures at the Aegean Institute of Law of the Sea and Maritime Law in Rhodes, Greece. He is a keen speaker, having recently presented a paper at the IX European Colloquium of Maritime Law Research 2016 hosted by University of the Basque Country, Spain.

1 More information on the Conference is available at: Adriatic Institute, Croatian Academy of Sciences and Arts portal, http://jadranski-zavod.hazu.hr/en/news/news/croatian-slovenian-and-italian-maritime-l a w-associations-sign-a-memorandum,60.html (accessed on 1st June 2016).; and, International Association of the Law of the Sea portal, http://www.assidmer.net/doc/2016_ADRIATIC-MARITIME-LAW-CONFERENCE.pdf (accessed on 1st June 2016).


http://jadranski-zavod.hazu.hr/en/news/news/croatian-slovenian-and-italian-maritime-law-associations-sign-a-memorandum,60.html

http://jadranski-zavod.hazu.hr/en/news/news/croatian-slovenian-and-italian-maritime-law-associations-sign-a-memorandum,60.html

http://www.assidmer.net/doc/2016_ADRIATIC-MARITIME-LAW-CONFERENCE.pdf



well received presentation on the current status quo of the new Italian Law on Ports, in

relation to the latest European perspective. Professor Zunarelli’s presentation was

followed by another intriguing presentation, given by Mr. Enrico Vergani, Vice President

of the Italian Maritime Law Association, and a maritime lawyer from Genoa. The

presentation covered port reforms and EU regulation focusing on the state aid issue, a

strongly debated topic at the moment.

The Friday sessions were dedicated to the discussion of the offshore activities – in

particular with regard the legal framework for offshore activities in the Adriatic and

Mediterranean, with the focus on opportunities, risks and challenges. Professor Marko

Pavliha, Faculty of Maritime Studies and Transport, Ljubljana University, presented a

paper on his research on why gas terminals must not be installed in the northern Adriatic

Sea. His presentation was well received by the audience, who appreciated Prof. Pavliha’s

opinions, clearly based on a thoroughly researched hypothesis.

In the second session, the numerous speakers illustrated the legal framework of

offshore activities in Italy, Slovenia and Croatia. The session aimed at providing a

comparative analysis of three different legislations, and pointing out the common grounds

and gaps that should be reduced in the near future, with a hope of establishing a common

policy with regard to the hydrocarbons exploration and exploitation in the Adriatic Sea.

In addition, a special session dedicated to the young maritime lawyers was chaired by

the Secretary General of the Croatian Maritime Law Association, Dr. Igor Vio. The young

practitioners focused on different topics such as the work of the CMI concerning ship

nomenclature, and the marine environmental impact in the process of offshore structures

decommissioning in the European perspective.

During the closing ceremony, the representatives of three Associations signed a

memorandum of understanding reflecting their intentions and commitment to making

the AMLC an annual event, and strengthening the cooperation between the three

Associations. The memorandum also reflects the Associations’ intention to include other

Adriatic states associations (once they are initiated), such as Montenegro and Albania,

into the AMLC structure.



49 Event | Gjeta: TransLawFer 2015

3rd Transport Law de lege ferenda: Annual Young Academics'

Vision on Tomorrow's Transport Law

Arber Gjeta, Artan Spahiu *

The following are the notes on the 3rd Annual Conference Transport Law de lege

ferenda: Young Academics’ Vision on Tomorrow’s Transport Law held at the University of

Elbasan “A. Xhuvani” on 26-27 November 2015.1

The Transport Law de lege ferenda (Translawfer) started in Leuven in November 2014,

at the Katholieke Universiteit Leuven. The second annual conference was hosted by the

Department of Maritime and Transport Law, Faculty of Law, University of Zagreb, Croatia.

The aim of the conference is to develop a debate among young researchers who are

currently working on their PhD theses or have already finished their PhD, provide them

with an opportunity to share their original findings with their peers . Chaired by

distinguished professors, the panels of the two editions of Translawfer included very

successful presentations and debates, which provided valuable feedback for the

participants. The debate among the participants and interesting feedback from the

audience was enriched with the attendance of practitioners who deal with everyday legal

issues concerning transport law.

The 3rd annual meeting Translawfer was held in Elbasan, Albania from 26-27

November 2015. The event was hosted by the Department of Law, Faculty of Economics,

University of Elbasan. In Albania, Translawfer accomplished a second aim set by the

organizing committee, which was to foster a legal and policy debate in Albania regarding

issues related to transport and maritime law in general. For this reason, the first day of

* Arber Gjeta is a Lecturer of Business Law and Transport Law at the Department of Law, Faculty of Economics – University of Elbasan, Albania. He has obtained his Ph.D. in European Transport Law in 2013 at the University of Bologna.

* Artan Spahiu is a Lecturer at the Department of Law, Faculty of Economics, University of Elbasan, Albania. He has obtained a PhD degree in Business Law, International Arbitration at the European University of Tirana in 2014. His current scientific research fields are: Arbitration law, obligations and contract law.

1 More information on the Conference is available at: University of Elbasan “A. Xhuvani” portal, http://www.uniel.edu.al/materi ale-te-ndryshme/konferenca-e-drejta2.pdf (accessed on 1st June 2016).


http://www.uniel.edu.al/materiale-te-ndryshme/konferenca-e-drejta2.pdf



the meeting was attended not only by academics and practicioners, but there were

numerous attendees from the Ministry of Transport, the Port Authority, and the Albanian

Road Authority.

Thus, after the welcome address and the greetings, the first day panel started with a

speech given by the Minister of Transport and Infrastructures of Albania, who briefly

explained the efforts of the Government in enhancing the legal framework for transport.

The invited professors took the floor and offered short presentations regarding

questions of maritime law and legal reform in Great Britain (Prof. Rhidian Thomas), Spain

(Prof. Ignacio Arroyo), Turkey (Prof. Pinar Akan), Croatia (Dr. Igor Vio) and Italy (Prof.

Stefano Zunarelli). The panel concluded with some reflections on how to carry out a

transport and maritime law legal reform in small countries like Albania, and on the path

to follow in the adoption of the international conventions in the field of transport and

maritime law.

The second day followed with presentations of papers by young academics and PhD

researchers who presented their current research findings. The panels were organized as

round tables and after each presentation there was time reserved for comments and

suggestions.

In the first panel, chaired by Prof. Rhidian Thomas and Prof. Ignacio Arroyo, there were

five presentations. Dr. Massimiliano Musi, from the University of Bologna, presented a

paper on the factispecies of insurance for the benefit of third parties and of those it may

concern in maritime transport of goods, examining the different types of contracts and

the ongoing practice in concluding insurance contracts. The author presented an in -depth

analysis of the position of the contractor and the insured party in the light of the

indemnity principle. Dr. Ersida Teliti, from the University of Tirana, presented a paper on

the contract of carriage of goods by road in Albanian legislation. Basically, the paper deals

with the contract of transport according to the Albanian Civil Code and the jurisprudence

of the Albanian Courts regarding transport of goods by road. Julia Constantino Chagas

Lessa, from the City University of London, presented her current work on the Maritime

Labour Convention and the current status and conditions of seafarers according to this

Convention. Aniekan Akpan, from the City University of London, presented his current

research on the law of maritime cabotage in the 21th century and beyond. Further, Art

Shala, a PhD researcher from the University of Tirana in the field of economics, presented



51 Event | Gjeta: TransLawFer 2015

a paper on accountability reporting and communication in the transport industry in a

comparative dimension.

In the second panel, chaired by Prof. Pinar Akan and Dr. Igor Vio, there were five

presentations. Carlo Corcione, from the City University of London, presented a paper on

third parties protection in carriage of good by sea and carriage of goods as a multilateral

venture, with third parties, especially offshore operators, as parties eligible for protection

within the carriage of goods contract. Dr. Belma Bulut, University of Southempton,

presented a paper comparing the Rotterdam Rules and the COGSA 1992 regarding the

instructions given to the carrier during the delivery of goods. Vincenzo Batistella

presented a paper on piracy and charterparties provisions. The author starts from the

absence of a definition of piracy. There are several clauses concerning piracy, like in

BIMCO and INTERTANKO or voyage and time charterparties, that are taken into

consideration in settling disputes that arise regarding the the bearing of costs that derive

from piracy. Dr. Arber Gjeta, from the University of Elbasan, presented a paper regarding

EU external aviation policy and the implementation of the European Common Aviation

Area in the Western Balkan countries. Dr. Artan Spahiu, from the University of Elbasan,

presented a paper regarding the local public transport in Albania and its legal framework.

The final remarks of this 3rd annual meeting were pointed out by Prof. Rhidian Thomas.

The event achieved the main goal of providing useful comments and suggestions to

authors, who yet again had the opportunity to expand their network. Furthermore, the

event was a milestone in the legal debate in Albania regarding transport law issues, at

least at an academic level.




CMI 2016 New York Conference: Young CMI Session

Robert Hoepel *

The combined session of MLA-CMI YLC CLE on Friday 6 May included two panel

discussions and a presentation by CMI prize winner Haris Kazantzis.

The first panel discussion, moderated by David Bovajian of Portland-based Schwabe,

Williamson & Wyatt PC focused on the OWB bankruptcy. It included eight panelists with

different backgrounds and from different jurisdictions. Harald Sondergaardof

Copenhagen-based law firm Hafnia opened the panel discussion by explaining the bigger

picture of the bankruptcy and the various issues raised shortly thereafter. Subsequently

Brian Maloney (Hanaway Ross - USA), Marie Larsen of New York (Holland & Knight LLP –

USA) and Justin Heilig from New York (Hill Rivkins LLP – USA) briefly outlined the

position of ING, the owners, and OWB. Other panelists, including Evangeline Quek

(Stephenson Harwoord – Hong Kong (China)), Jason Lattanzio of Vancouver-based

Alexander Holburn Beaudin + Lang LLP and Luis Raven of Panama (Morgan & Morgan)

followed by elaborating on the present legal proceedings in the UK, Canada and Panama,

respectively. It appears that Canada is taking an alternative view on the question whether

physical suppliers could recover from owners as opposed to the UK and Canada. The RES

COGITANS Supreme Court decision1 could, however, change a lot.

Following the first panel discussion, Haris Kazantzis was presented an a ward for his

prize-winning overall performance in his Master’s at the IMO International Maritime Law

Institute (Malta). He gave a presentation on his Master’s thesis called ‘The Aegean Sea

* Robert Hoepel is a dispute resolution lawyer in AKD’s Transport & Energy team based in Rotterdam. After completing the Master’s programme in Civil Law at Leiden University he joined the team in 2009. Robert is a member of the Dutch Transport Law Association (Nederlandse Vereniging voor Vervoerrecht (NVV)) and the Transport Law Commission of AIJA (Association Internationale des Jeunes Avocats). obert is editor of maritime and insurance law report Schip & Schade.

The ITL Review Editors would like to thank Mr. Taco van der Valk (AKD Rotterdam) for his help with regard the current submission.

1 RES COGITANS Supreme Court decision, available at: British and Irish Legal Information Institute portal: http://www.bailii.org/uk/cases/UKSC/2016/23.html (accessed on 1st June 2016).


http://www.bailii.org/uk/cases/UKSC/2016/23.html


53 Event | Hoepel: Young CMI 2016

Dispute over the Continental Shelf and Joint Development Agreements as an Avenue

towards Effective Cooperation’.

The Friday afternoon session was closed by a second panel discussion, moderated by

Imran Shaukat (Bowen & Semmes – Baltimore USA), Fleet Hamburg’s Dharshini Bandara

(Hamburg (Germany)), Marissa Henderson of Norfolk (Ventker Warman Henderson PLLC

– USA), Kasee Sparks Heisterhagen of Burr & Forman from Mobile (USA) and Robert

Hoepel (AKD – Rotterdam (the Netherlands)), on obtaining evidence in the US, UK, and

the Netherlands. It was learned that both the US and the UK have extensive discovery and

disclosure proceedings whereas in the Netherlands disclosure is an exception to the

general rule that parties are free to decide which information is disclosed in court and

which not. In addition, the US permits discovery for use in foreign proceedings. An

interesting Q&A session followed and the differences between common law and civil law

countries came to the surface.





Mišo Mudrić *

Since its foundation, the Department of Maritime and Transport Law1 seeks to be the focal

point for maritime and transport law research, as well as a facilitator of cooperation

between academics and practitioners. The Department members are as follows:

Aleksandar Bravar, PhD., Head of the Department, Full Professor; Nikoleta Radionov, PhD,

Full Professor; Jasenko Marin, PhD, Full Professor; Mišo Mudrić, PhD, Assistant Professor;

and, Iva Savić, PhD, Assistant Professor.

The following is a brief description of the courses offered by the Department.

7. Undergraduate Level

7.1. Courses offered in the Croatian Language

With regard to the courses offered in the Croatian language, the compulsory fourth year

course in Maritime and Transport Law offers a range of subjects for students wishing

to specialize in shipping law, general transport law, marine insurance law and related

matters. It also provides an opportunity to study comprehensively both the private and

public law aspects of international maritime and transport law within the commercial and

international trade law setting (for more details, see a similar course offered in English

below). In addition, the Department holds seminars and practical workshops for students

who wish to broaden their knowledge on the subject matter.

For students who are especially interested in European law concerning the maritime

and transport field, the Department holds a separate course in European Transport Law

(for more details, see a similar course offered in English below).

* Mišo Mudrić is an Assistan Professor at the Chair of Maritime and Transport Law, Faculty of Law, Univers ity

of Zagreb, Croatia. He has obtained his PhD at the Faculty of Law, University of Hamburg, as a Scholar of the

International Max Planck Research School for Maritime Affairs, at the Max Planck Institute for Comparative and

International Private Law, Hamburg, Germany.

1 More information on the Department can be obtained at: Faculty of Law, University of Zagreb portal : http://www.pravo.unizg.hr/POP/en/ (accessed on 1st June 2016).


http://www.pravo.unizg.hr/POP/en/


55 Institutions | Mudrić: Zagreb

For students who wish to broaden their knowledge in the above named matters, with

a focus on insurance law aspects, the Department offers a non-compulsory course in

Insurance Law, which is held in the IX semester.

Furthermore, the Department participates in the delivery of the course in Energy Law

(offshore aspects).

7.2. English Language Courses for Croatian and ERASMUS students

The Department holds a course in Maritime and Transport Law in English language for

all interested domestic (Croatian) students, as well as ERASMUS students (summer

semester). Having in mind what was previously said about the course, both the Croatian

version and English version (with more focus on international and comparative aspects

in the latter) include lectures on the following specific issues and topics: The Role of

Transport in International Commerce; Aviation Law – Sources, Air Carrier’s Liability –

Passengers, Goods; Rail Transport Law – Sources, Rail Carrier’s Liability – Passengers,

Goods; Road Transport Law – Sources, Road Carrier’s Liability – Passengers, Goods; The

Concept of Vessel in Maritime Law; Mortgage and Liens I – ship financing, single ship

companies; Mortgage and Liens II – rights and obligations; Shipowner, operator, ship

manager, shipping agent, stevedore; Global Limitation of Liability, LLMC 1976/1996;

Contracts of Affreightment – types, rights and obligations; Charterparties – Voyage and

Time Charterparty, rights and obligations; Bills of Lading I: functions, applicable rules:

Hague-Visby, Hamburg, Rotterdam rules; Bills of Lading II: B/L issued under

Charterparties; Bills of Lading III: Carrier’s liability for damages and delay, limitation of

liability right; Direct and multimodal transport; Contract of Carriage of Passengers and

Luggage by Sea I; Contract of Carriage of Passengers by Sea II: duties and obligations,

Breach of contract and contractual liability for damages; Carriage of Passengers by Sea III:

Passengers’ rights under the EU law; Internal Waterway Navigation and Carriage; General

Average; Ship Collision; Salvage at Sea; Marine Pollution – CLC, Bunker, HNS; Non-

Contractual Liability of Shipowner and Ship Operator; Wreck Removal; Marine Insurance

– Contract; Marine Insurance – Institute Cargo Clauses; Marine Insurance – Institute Hull

Clauses; Marine Insurance – P&I Clubs; and, Maritime Demesne.




The Carriage of Goods by Sea course focuses on this particularly important aspect of

maritime law. Having in mind that the majority of global trade is being conducted over

sea, a specific focus on and study of legal relations arising out of carriage of goods by sea

contracts becomes a necessity for all (future) lawyers who deal with international trade.

The legal relations in this field are very complex, due to the fact that they are derived from

a fusion of international sale of goods contract, contract of carriage, and, cargo insurance

contract. The liability to compensate for damage arising out of carriage depends on the

complex relations network based on charterparties and other contracts with regard to the

use of vessels. A detailed examination of these relations is a necessity for all students who

have previously acquired (or intend to acquire) basic knowledge in maritime law, and

wish to deepen their understanding of international sale.

The course includes lectures on the following specific issues and topics: International

Sales of Goods and Maritime Transport I (International trade and the role of shipping,

International Sale of Goods under CISG, INCOTERMS and their importance for carriage of

goods by sea); International Sales of Goods and Maritime Transport II (Performance of

international sales of goods, Connection between the contract of carriage by sea and cargo

insurance contract, Interested parties under the contract and the insured interest);

International Sales of Goods and Maritime Transport III (FOB, FAS and CIF contracts);

Carriage of Goods by Sea I (System of contracts for carriage of goods by sea, Charterparties

(C/P) and contract of affreightment (CofA)); Carriage of Goods by Sea II (Implied

obligations under CofA: seaworthiness, reasonable dispatch, deviation, safe port,

dangerous goods, Concept of frustration); Charterparties I (The voyage C/P, General

overview, Obligations under the voyage C/P); Charterparties II (The time C/P, General

overview, The vessel, Hire); Bill of Lading (B/L) I (Functions, B/L and third parties,

Presentation of B/L); Bill of Lading (B/L) II (Legal rules governing B/L: The Hague/Visby

Rules, Application, legal effect and basic provisions of Hague-Visby Rules); Bill of Lading

(B/L) III (Liability of the carrier for damages to cargo under the Hague-Visby Rules); Bill

of Lading (B/L) IV (Legal rules governing B/L: The Hamburg Rules, Issue of applicable

law); Bill of Lading (B/L) V (B/L issued under C/P: differentiating between the charterer

and third-party shipper, Shipowner’s recourse against charterer); Performance of

Carriage (Loading, Deviation and Delivery Delay, Laytime and Demurrage); Direct and

Multimodal Transport; and, Jurisdiction and Applicable Law




The European Transport Law course is offered to Croatian and ERASMUS students in

the fifth year (winter semester), and examines the overall legal regulation of the transport

in the European Union (acquis communautaire) through all five transport branches,

including a general introduction into the provisions on trade relations in the Founding

treaties, in relation to other provisions of the contract and operation principles of

European law in the area of transport law.

The course includes lectures on the following specific issues and topics: Introduction

to EU transport law and policy (transport corridors, means of transport and EU transport

strategies, White papers and the implications for the creation of the acquis, Role of the

institutions); Treaty framework for the regulation of transport (explaining the relevant

articles of the Treaty, their genesis, including the reasons for the separate treatment of

transport from other services, case 13/83 Common Transport Policy and the obligation to

legislate in the area of transport); EU competences in the field of transport (principle of

conferral and transport as a widely interpreted competence – case 97/78 Fritz Schumalla

and joint cases C-248 and 249/95 Stapf; transport as a shared competence, external

competences and the development of the concept of implied external powers, exclusivity

of external powers, case 22/70 Commission v. Council - ERTA, Lisbon Treaty

amendments); Transport and the Internal Market (negative integration: application of the

entire Treaty on national rules governing transport, case 167/73 French Seamen; public

service exception - C-405/01 Master of Ship; positive integration: motives, horizontal

provisions shaping transport policy); Decision-making in the field of transport

(institutions participating in decision-making, agencies and their role; practical example

of the procedure of decision-making on the basis of a concrete legislative act, procedure

for signing international agreements, relationship between international agreements and

internal EU law in the field of transport, the problem of disconnection clauses);

Organization and functioning of the single road transport services market (Position of

road transport and its market share, road transport and the EU policy strategies, pros and

cons of road transport, access to the profession of the road carrier, Community licenses,

access to the road transport services market, functioning of the single road transport

market); Functioning of the Single road transport services market: advanced (national,

international and EU legislation in road freight transport; national, international and EU




legislation in transport of passengers by road; cabotage market, public service contracts);

Creation and functioning of the single rail transport services market: restructuring of the

railways (competitiveness of rail transport and its market share, challenges of rail

transport, division of infrastructure and operators, access to the freight and passenger rail

transport services market, three railway packages and liberalization of the market,

licenses, right of access to the infrastructure); Interoperability and safety of rail transport,

Passenger’s rights in rail transport (development of interoperability in rail transport,

high-speed rail system, transport of dangerous and noxious substances by rail, new rights

of passengers in carriage by rail); EU law and policy on transport by inland waterways

(strategic positioning of transport by inland waterways in the EU, multiple legal

framework of the law on inland waterways, NAIADES, Single market and competition law

issues on the inland waterways market, safety in inland navigation); Horizontal

provisions on competition law and policy in land transport (Competition Law rules in the

law of land transport: abuse of dominant position, prohibited agreements, control of

concentrations, state subsidies, block exemptions under the Treaty, PSO Regulation and

services of public interest); EU Maritime Law and Policy, Creation of the Single market of

maritime transport services, Competition Law in Maritime Transport Law services,

Maritime safety and security issues (Rules on access to the market of maritime services,

access to the cabotage transport market, liner conferences, pools, state subsidies and

services of public interest – PSO, rules on maritime safety and security, relevant ECJ case

law); EU law and policy on maritime ports, Creation and functioning of the Single market

of port services (Rules on access to the market on port services, freedom to provide port

services, ECJ case law on port services, competition law in port sector, state subsidies);

International and EU legal framework for air transport, Freedom to provide air transport

services and market access rules (Development of common EU air transport law and

policy, international organizations in air transport, rules on market access for aviation

operators, licensing, basic rules on tariffs, access to airport facilities and slot distribution);

and, Competition law in air transport services, Air safety and security issues, Rights of

passengers in air transport (basic competition rules under the Treaty, Nouvelles frontières

case, prohibited agreements, abuse of dominant position, mergers, Open Skies

agreements, European Common Aviation Area, safety and security in air transport,

passengers rights in air transport).




The Transport Insurance Law course is offered to Croatian and ERASMUS students

in the fifth year (winter semester). Transport insurance is crucial for an every-day

undisturbed functioning of domestic and international trade, having in mind that carriage

of goods – the basic modus operandi of international (and domestic) trade – is dependent

on the availability and financial acceptability of insurance coverage for unwanted liability

exposure. Therefore, all (future) lawyers who deal with international trade should be

interested in acquiring both basic and advance knowledge in this subject matter.

The course includes lectures on the following specific issues and topics: Introduction

to Transport Insurance Law (Modern land transport industry and the risks involved,

Position of land transport and insurance with respect to international trade, Single market

and land transport services, Role of transport insurance with respect of risks involved in

land transport, EU transport strategies and the role of insurance); Cargo Insurance (Risks

involved in carriage of goods by rail and road, Applicable law and legal framework,

International sales of goods under the INCOTERMS contract of carriage and cargo

insurance contracts, Cargo interested party, Rights and obligations under the cargo

insurance contract, Institute Cargo Clauses, Concept of subrogation of rights);

Professional Liability Insurance in Road Transport (Professional liability of the carrier

under the contract of carriage of goods and passengers in domestic and international road

transport: normative framework, risks and main institutes, Insurance of professional

liability in road haulage and passenger transport, Insured sum, Single market in road

transport and challenges for the liability insurance); Professional Liability Insurance in

Rail Transport (Professional liability of the railway undertaking under the contract of

carriage of goods and passengers, Separation of infrastructure management and railway

operators under the EU law and its impact on liability insurance, Applicable legal

framework: international, EU and national level); Aviation Insurance I (Main types of

contracts, Hull insurance and typical risks, Aviation cargo insurance, Airport operations

liability insurance, Normative framework: international, EU and national legal sources);

Aviation Insurance II (Owner/operator liability insurance for damages in passenger

transport: applicable law and legal sources - international, EU and national, The concept

of compulsory insurance); Marine Insurance I (Concept and role of marine insurance for

contemporary shipping, Marine insurance law and its position within the insurance law

in general and transport insurance law, Historical background to marine insurance law);

Marine Insurance II (Risks covered by marine insurance policies, Classic London




Insurance Market division of insurance, Marine insurance contract: contracting parties,

marine insurance principles, definition of marine insurance, Maritime perils, Sources of

law); Marine Insurance III (Concluding and enforcing marine insurance contracts: the

London market, Hull & Machinery insurance, Institute Time and Voyage Clauses-Hulls

(1983, 1995, 2003) Insurable interest, The H&M policy, Policy valuation and indemnity

under the policy, Warranties); Marine Insurance IV (Marine Cargo Insurance: Institute

Cargo Clauses (1982, 2009)); Marine Insurance V (Marine Cargo Insurance: case study);

Protection and Indemnity Insurance (P&I) I (Concept of mutual insurance, Historical

background, Running Down Clause, Structure and functioning of P&I clubs, Importance of

P&I for modern-day shipping); Protection and Indemnity Insurance (P&I) II (Risks

covered by P&I, Pay to be paid rule (first paid rule)); Compulsory Marine Insurance

(Sources of law: international, EU and national, Compulsory insured risks in shipping,

Collision of compulsory insurance in continental legal systems and the P&I paid to be paid

rule); and, Reinsurance (The concept of reinsurance, Relations between parties in

reinsurance, Types of reinsurance).

Finally, the Department offers a separate course for both Croatian and Erasmus

students in Private Security Services and Law (summer semester), where the students

are given an opportunity to learn about all aspects of private military and security

companies domestic regulation and contracting, ethical considerations with regard to

their operations, and soft-law regulations through various sorts of guidelines, standards

and associations rules with regard to proper conduct while performing security services.

8. Postgraduate Level

The Department holds several courses on the postgraduate level specialist and doctoral

programmes offered at the Faculty of Law, University of Zagreb. All courses are held in

Croatian: Maritime Law I: Maritime Transport; Maritime Law II: Shipowner’s Liability;

Insurance Law; Marine Insurance; Maritime Law – Selected Topics; General Transport

Law; and, General Transport Law – Selected Topics.



61 Institutions | Musi, Battistella: Bologna

School of Law, Alma Mater Studiorum – University of Bologna

Massimiliano Musi, Vincenzo Battistella *

The Department of Legal Studies of the Alma Mater Studiorum – University of Bologna

aims to promote forms of international cooperation among international institutions and

universities all over Europe and the rest of the World. The Department members of the

scientific disciplinary sector of Navigation Law studies (IUS /06) are as follows: Stefano

Zunarelli, Full Professor; Anna Masutti, Full Professor; Alessandra Romagnoli, Associate

Professor; Greta Tellarini, Associate Professor and, Elena Orrù, Assistant Professor.

Hereby follows a short description of the courses in Navigation, Transport and Air Law

taught at the School of Law, University of Bologna.1

1. Navigation Law Course

The main aim of the Navigation Law course at the Law School of the Alma Mater

Studiorum - University of Bologna, is to introduce students to the fundamentals of both

maritime and terrestrial transport legal framework from a private law perspective.

As many of the topics are governed by international conventions, a careful and

thorough comparative analysis allows the students to understand the different

approaches taken by the national regulations, such as the Italian Navigation Code, and

relevant EU regulations.

* Massimiliano Musi is a Research Fellow in Maritime and Transport Law at the School of Law of the Alma Mater Studiorum – University of Bologna, and Adjunct Professor in Air Law at the School of Engineering and Architecture of the University of Bologna, Campus of Forlì. He has ob tained his Ph.D. in European Transport Law in 2012 at the University of Bologna .

Vincenzo Battistella is a teaching assistant at the Maritime Law Chair, School of Law, Alma Mater Studiorium – University of Bologna, Italy. He obtained the II Level Master Degree in Law and Econimics of the Sea from the Chamber of Commerce of Pescara – Research Centre for Fishery and Navigation Law – and University of Teramo School of Law, during which he has attended lectures at the Aegean Institute of Law of the Sea and Maritime Law in Rhodes, Greece. He is a keen speaker, having recently presented a paper at the IX European Colloquium of Maritime Law Research 2016 hosted by University of the Basque Country, Spain .

1 More information on the School of Law can be obtained at: School of Law, Alma Mater Studiorum – University of Bologna portal: http://www.giurisprudenza.unibo.it/it (accessed on 1st June 2016).




This course is designed to provide students with adequate critical tools to evaluate and

understand the complex reality of carriage, and to understand the main legal issues

related to the modern phenomena and the established practice in the shipping, land

transport and international trade sectors.

The main issues addressed in the course are: the discipline related to shipping

companies; ship ownership and co-ownership; ship owner liability; contracts concerning

the use of vessel, such as, bareboat charter, time charter, voyage charter, contract of

affreightment; the contract of carriage of goods and of passengers ; the regulation of

international carriage of goods by road; the discipline of the carriage of goods and

passengers by sea and of international and domestic multimodal carriage of goods; the

most relevant documents in transport of goods; and the Incoterms clauses.

2. Transportation Law Course

The Transport Law Course at the School of Law of the Alma Mater Studiorum - University

of Bologna is aimed to provide an accurate in-depth analysis of the relevant EU, national

and regional regulations from a public law perspective.

The students acquire knowledge of the rules, which, according to international, EU and

national law, identify the criteria under which a company is allowed to perform a

particular type of transport service. The course focuses on the different modes of

passenger and goods carriage (transport services by air, sea, rail and road). Moreover, by

the end of the course, students are acquainted with the rules related to the management

of major transport infrastructures (ports and airports) and the main services which, as

part of these infrastructures, are provided to users (port operations and technical-

nautical services; handling services).

The course demonstrates how to apply a relevant source of law to each specific case,

and examines the doctrinal and jurisprudential debate developed in terms of access to the

transport services market and the management of the related infrastructures. It aims to

analyze the European, national and regional regulations intended to govern the issue of

access to transport services and related infrastructures.

The course programme is divided into two parts. The first part of the course is

dedicated to an analysis of the regulatory requirements allowing companies to provide



63 Institutions | Musi, Battistella: Bologna

transport services by air, sea, rail and road, in the light of relevant and applicable

competition rules. The second part is the study of the rules governing the management of

transport infrastructure (ports and airports) and the services provided in the said

infrastructures, which are ancillary to the transfer of passengers and goods. The analysis

is developed in the light of principal sources of law, as well as the doctrinal and

jurisprudential debate.

Finally, particular attention is given to the European Commission guidelines, as well as

the decisions of the Italian Antitrust Authority, issued with reference to the principal legal

issues of the course programme.

3. Aviation Law Course

The Aviation Law course at the School of Law of the Alma Mater Studiorum - University

of Bologna focuses on the relevant principles and rules of private and public air law in the

European and international perspective.

Some of the main issues covered by the course are: the Chicago Convention system on

international civil aviation; bilateral air transport service agreements; the deregulation

and liberalization of air transport services; the liberalization of handling services; the

regime of slot allocation; the rules related to air traffic management; ICAO, ECAC, ENAC,

ENAV and other public and private entities; the contracts for the employment of aircraft;

the contract of carriage by air; the reform of the aeronautical part of the Italian Navigation

Code; and, the aviation safety rules and the regime on aircraft accidents.

Furthermore, the course addresses political and practical issues such as the unification

of private international air law through the adoption of international conventions, with

special attention to the liability of the air carrier under the Warsaw Convention 1929, as

amended and supplemented by several other international legal instruments, including

the Montreal Convention of 1999. Insurance aspects and implications of the air carrier’s

international liability are also examined in the course.



Instructions for Authors

Each paper submission shall contain the following elements:

Title

Author/authors’ details (name and surname, academic title, professional position, personal e-mail address, name and address of the home institution)

Abstract (up to 250 words)

Keywords (up to 5 keywords)

Short author/authors’ biographical details (up to 100 words)

The materials for publication are to be submitted to:

International Transport Law Review

EDITORIAL CORRESPONDENCE

Subject: ITL Review Publication Submission

To: ITLR Executive Editors – [email protected]

Each submission shall adhere to the following citation rules:

Main body of text, font: Cambria; font size: 12; line spacing: 1,5; no indentation.

Headers and sub-headers should use the following structure: 1. / 1.2. / 1.3. / 1.4.

Text must not contain any special formatting.

Footnotes are to be listed at the foot of each page, font: Cambria; font size: 10; line spacing: 1; no indentation.

All the citation of books, articles, cases must be done in the footnotes and not in the main body of the text.

The footnotes in the main body of text should be attached to the word (or last word of a sentence) to which they refer, after any punctuation:

o Example: The terms of payment are set with regards to the moments which has best characterized the construction.1

The footnotes at the bottom of page should be followed by a blank space before the first word of the footnote, which must have a capital letter.

o Example: 1 See clause 6 of Baltime.

Books should be cited as follows: author/authors’ name and surname (if the authors are more than one, the names are separated with a comma); title in italic; edition (if applicable), city followed by a colon, publisher and year in brackets; page(s)


mailto:[email protected]


o Example: Alan Khee-Jin Tan, Vessel-Source Marine Pollution: the Law and Politics of International Regulation (Cambridge: Cambridge University Press, 2006), 44 (if the pages are more than one: 44-48, or 44 ff.).

Edited volumes should be cited as follows: author/authors’ name and surname (if the authors are more than one, the names are separated with a comma); followed by “ed. or eds. (if more editors)”; title in italic; edition (if applicable), city followed by a colon, publisher and year in brackets; page(s) (if applicable)

o Example: Massimiliano Musi (ed.), New Comparative Perspectives in Maritime, Transport and International Trade Law (Bologna: Liberia Bonomo Editrice, 2014).

Chapters in books should be cited as follows: author/authors’ name and surname (if the authors are more than one, the names are separated with a comma); title of chapter in italic; the word “in” not in italics, followed by “ed. or eds. (if more editors)”; title in italic; edition (if applicable), city followed by a colon, publisher and year in brackets; page(s)

o Example: Julia Constantino Chagas Lessa, How wide are the shoulders of a Flag of Convenience Country?, in Massimiliano Musi (ed.), New Comparative Perspectives in Maritime, Transport and International Trade Law (Bologna: Liberia Bonomo Editrice, 2014), 227. (if the pages are more than one: 227-255, or 227 ff.).

Articles in journals should be cited as follows: author/authors’ name and surname (if the authors are more than one, the names are separated with a comma); title in italic; full name of the journal written in italic; information on the volume or issue if so required by the perspective journal’s citation recommendation; year of publication in brackets followed by a colon; page(s)

o Example: Jan de Bruyne, Liability of Classification Societies: Cases, Challenges, and Future Perspectives, in Journal of Maritime Law & Commerce, 2014, 181. (if the pages are more than one: 181-185, or 181 ff.).

Cases should be cited in accordance with the official law reports of relevant jurisdictions

o Example: Court of Appeal Antwerp, May 10, 1994, Rechtspraak Haven van Antwerpen (1995): 301.

Internet sources should be cited as follows: author/authors’ name and surname (if the authors are more than one, the names are separated with a comma) if available; title of the article/document written in italic; year, page(s); “available at” followed by a colon; name of portal where the article/document can be obtained; portal internet address, date of last access in brackets

o Example: International Association of Classification Societies (IACS), Classification Societies: their key role, 2001, 5-6, available at: International Association of Classification Societies Ltd. Portal, http://www.iacs.org.uk/document/public/explained/CLASS_KEY_ROLE.pdf (accessed on 1 June 2016)

Legal sources should be cited in accordance with the official law reports of relevant jurisdictions, or in accordance with relevant international law reports


http://www.iacs.org.uk/document/public/explained/CLASS_KEY_ROLE.pdf


o Example: United Nations Convention on the Law of the Sea (UNCLOS), United Nations Treaty Series: 1833, 1834, 1835.

If a source is being repeated more than once, the following specific rules should be adhered to:

o if a source has been utilized in the previous footnote, with the exact same pages as relevant for the following footnote, the author/authors’ sur name (if the authors are more than one, the names are separated with a comma) should be inserted, followed by the abbreviation: ibid. (written in italic)

Example: Footnote 1: Julia Constantino Chagas Lessa, How wide are the shoulders of a Flag of Convenience Country?, in Massimiliano Musi (ed.), New Comparative Perspectives in Maritime, Transport and International Trade Law (Bologna: Liberia Bonomo Editrice, 2014), 227.

Footnote 2: Constantino Chagas Lessa, ibid.

o If a source has been utilized in the previous footnote, with different pages as from the current footnote, the author/authors’ surname (if the authors are more than one, the names are separated with a comma) should be inserted, followed by the abbreviation: id. (written in italic), followed by page(s)

Example: Footnote 1: Julia Constantino Chagas Lessa, How wide are the shoulders of a Flag of Convenience Country? , in Massimiliano Musi (ed.), New Comparative Perspectives in Maritime, Transport and International Trade Law (Bologna: Liberia Bonomo Editrice, 2014), 227.

Footnote 2: Constantino Chagas Lessa, id., 229.

o If a source has been utilized in any other footnote apart from the previous one, the author/authors’ surname (if the authors are more than one, the names are separated with a comma) should be inserted, followed by the abbreviation “op. cit.” (written in italic), followed by page(s)

Example: Footnote 1: Julia Constantino Chagas Lessa, How wide are the shoulders of a Flag of Convenience Country? , in Massimiliano Musi (ed.), New Comparative Perspectives in Maritime, Transport and International Trade Law (Bologna: Liberia Bonomo Editrice, 2014), 227.

Footnote 5: Constantino Chagas Lessa, op. cit., 231-235.



International Transport Law Review Vol. 1 | Issue 1 | 2016

E-journal on Transport Law | ISSN 2459-7325

Faculty of Law University of Zagreb International Transport Law Review Portal: http://itlr.pravo.unizg.hr/



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