INTERPRETATION AND CONSTRUCTION OF THE HAGUE, HAGUE/VISBY AND HAMBURG RULES

(published in (2004) 10 JIML 30-70) William Tetley, Q.C. I. II. III. Introduction Styles of Drafting Civil Law/Common Law Rules of Interpretation and Construction 1) 2) 3) 4)
5)

Civil law a) Mazeauds rules of interpretation b) Mignaults rules of interpretation Common law Civil law vs. common law interpretation of international conventions Vienna Convention on the Law of Treaties 1969 Mixed jurisdictions

IV. V.

Hague and Hague/Visby Rules Codifying Statutes Stare Decisis 1) 2) 3) Common law Civil law a) Continental civil law jurisdictions b) Mixed jurisdictions Stare decisis the supreme courts a) The Court of Justice of the European Communities b) The European Court of Human Rights c) The House of Lords d) The Supreme Court of the United States e) The Supreme Court of Canada Intermediate appeal courts a) The United Kingdom b) The United States Circuit Courts of Appeals c) Canada

4)

Professor of Law, McGill University, Distinguished Visiting Professor of Maritime and Commercial Law, Tulane University School of Law, and counsel to Langlois Gaudreau OConnor of Montreal. The author is indebted to Robert C. Wilkins, B.A., B.C.L., for his assistance in the preparation and correction of the text. The author acknowledges a generous grant from the Wainwright Trust for researchers.

VI.

Privy Council Jurisdiction and Authority 1) 2) 3) Jurisdiction Abolition of the right to appeal by Commonwealth members a) On becoming republics b) By specific legislation Authority of the Privy Council a) Never binding on itself b) Before abolition c) After abolition

VII.

Particular Principles of Interpretation of the Rules 1) 2) 3) 4) 5) 6) 7) 8) 9) 10) 11) Actual wording - rather than previous law International rather than domestic construction The principle of standardization Reference to the history of the Rules Carrier/shipper compromise and balance Strict construction of the exceptions in the Rules Taking cognisance of new methods The French text and other texts References to foreign judgments Precedence of a later statute Precedence of the international convention

VIII. The Hague/Visby Rules IX. X. The Hamburg Rules Conclusion

INTERPRETATION AND CONSTRUCTION OF THE HAGUE, HAGUE/VISBY AND HAMBURG RULES

William Tetley, Q.C. Abstract Prof. Tetley here reviews civil law and common law rules of interpreting international conventions - rules partly harmonised by the Vienna Convention on the Law of Treaties 1969. He then compares the application of stare decisis in the U.K., the U.S., and Canada, at the supreme court, appellate and first instance levels, noting also the replacement of the Privy Council by national supreme courts as final courts of appeal in different Commonwealth countries. Various principles which should be applied in interpreting the Hague, Hague/Visby and Hamburg Rules are then set forth, including a truly international approach, the principle of standardization, and reference to the legal history, travaux prparatoires and official-language versions of those conventions.

I.

Introduction

Before considering how the Hague Rules and the Hague/Visby Rules should be interpreted, it is important to look at the differing principles of interpretation and construction of both the civil law and the common law with a view to determining whether the two sets of Rules were drafted in civil law or common law style or in some intermediary form. II. Styles of Drafting - Civil Law/Common Law

Professor of Law, McGill University, Distinguished Visiting Professor of Maritime and Commercial Law, Tulane University School of Law, and counsel to Langlois Gaudreau OConnor of Montreal. The author is indebted to Robert C. Wilkins, B.A., B.C.L., for his assistance in the preparation and correction of the text. The author acknowledges a generous grant from the Wainwright Trust for researchers.

The basic tenet of the civil law style of drafting (le style franais)1 is concision. The aim of the style is to be concise,2 to present a principle of law in a single, general, harmonious phrase that by its broad terms encompasses all particular details.3 A celebrated example is arts. 1382 and 1383 of the French Civil Code, which in two sentences contains the whole law of personal delict (equivalent to personal tort in the common law).4 Another example is the law of vicarious liability to be found at art. 1384 c.c. (France).5 In Qubec, a prime example of civilian concision is art. 6 of the Civil Code of 1994: Every person is bound to exercise his civil rights in good faith. Codification permits the rgles de droit (fundamental legal principles, rather than specific legal rules for the particular case) to be enacted in broad terms, which may then be interpreted and extended to new situations by enlightened judicial interpretation.6
See Louis-Philippe Pigeon, Rdaction et interprtation des lois, 2 Ed., Gouvernement du Qubec, Quebec, 1986 at p. 19. See also Philippe Malaurie & Laurent Ayns, Cours de droit civil. Introduction ltude du droit, ditions Cujas, Paris, 1991 at para. 516: La loi devrait tre facilement intelligible, cest-dire quelle devrait tre simple, claire, concise et sans effets littraires. Note, however, that not all Civil Codes follow the French model. The German Civil Code of 1896 (the Brgerliches Gesetzbuch), in particular, is far more detailed than the French Code and those modelled on it. See M.A. Glendon, M.W. Gordon & C. Osakwe, Comparative Legal Traditions, West Publishing Co., St. Paul, Minn., 1994 at p. 54: In form and style, the French Civil Code stands in marked contrast to the German Civil Code which appeared nearly a century later. The Code civil des franais was meant to be read and understood by the citizen. With its clean, fertile and intentionally concise provisions, its style resembles that of the United States Constitution, more than it does the German Civil Code of 1896. The draftsmen opted for the flexibility of general rules, rather than for detailed provisions. 2 Montesquieu, in his celebrated De LEsprit des Lois, 1748 (Book XXIX, chap. xvi), gives as his first and foremost admonishment on composing laws that: The style ought to be concise. (The Spirit of Laws, A compendium of the First English Edition with an Introduction by David Wallace Carrithers, Berkeley, 1977, at p. 376). Portalis, one of the drafters of the Code Napolon, declared: L'office de la loi est de fixer, par de grandes vues, les maximes gnrales du droit; d'tablir des principes fconds en consquences, et non de descendre dans le dtail des questions qui peuvent natre sur chaque matire. Portalis admirable speech is published in full in Sir O. Kahn-Freund, C. Lvy and B. Rudden (eds.), A Source-book on French Law, 3 Ed., Clarendon Press, Oxford, 1991, 233 at p. 235 [hereafter cited as Kahn-Freund, Lvy & Rudden, A Source-Book on French Law, 3 Ed., 1991]. 3 Professor F.H. Lawson, commenting on the style of the Code Napolon, said that it was composed in the sort of plain style we admire so much in our Swift and Defoe, and which Hazlitt said was so difficult to write. (F.H. Lawson, An English Lawyer's Reflections on the Hundred and Fiftieth Anniversary of the Code Civil. The Comparison: Selected Essays, vol. II, Amsterdam, 1977, at p. 48.) It is interesting to note that Napoleon did not approve of the drafter's style of the Code that bears his name. He complained: that the vice of our modern legislations is that they do not speak to the imagination. Man can be governed only by imagination; without it, man is a brute. It is a mistake to govern men like things; it is by speaking to man's soul that he can be thrilled ... (Thibaudeau, Mmoires sur le Consulat de 1799 1804 par un Ancien Conseiller dEtat, 419-424, translated by and cited in Alain Levasseur, On the Structure of a Civil Code (1969-1970), 44 Tul. L. Rev. 693 at p. 698.) 4 Arts. 1382 and 1383 c.c. (France), identical to arts. 1382 and 1383 c.c. (Belgium). See also arts. 2315, 2316 c.c. (Louisiana); art. 2043 c.c. (Italy); art. 1902 c.c. (Spain). 5 Identical to art.1384 c.c. (Belgium) and similar to art. 2317 c.c. (Louisiana); arts. 2048 and 2049 c.c. (Italy); and art. 1903 c.c. (Spain). 6 See Brice Dickson, in Introduction to French Law, Pitman Publishing, London, 1994 at pp. 10-11: The generally worded provisions of the Code civil and the consequent freedom given to judges to interpret and apply those provisions have made possible the development of new rules and have without doubt been responsible for the Codes ability to come to terms with the social, technical and economic developments since Napoleons day. See also J. Ghestin & G. Goubeaux, Trait de Droit Civil. Introduction Gnrale, 4 Ed., L.G.D.J., Paris, 1994 at para. 147.
1

The common law style of drafting (le style anglais),7 on the other hand, emphasizes precision8 rather than concision.9 The aim of the style is to include every possible detail in order to fully inform the citizen of the law and of his rights.10 The practice in common law drafting is to list all the particulars, preceded by a catch-all phrase, which is followed by a demurrer such as notwithstanding the generality of the foregoing. Art. 4(2)(a) to (q) of the Hague and Hague/Visby Rules is an example of common law drafting: a long list from 4(2)(a) to (p), followed by the catch-all phrase (q), this time at the end. Conversely, art. 4(1) of the Hague Rules and art. 5(l) of the Hamburg Rules are approximations of the civil law style of drafting. Another difference between the common law and the civil law lies in their respective approaches to remedies and recourses. The common law deals with remedies first: there must be a remedy11 to have a right, while the civil law is concerned first with rights and all rights have virtually the same recourse. For example, in respect to contracts, the civil law recourses for breach of contract are the rescision of the contract or damages or both and, occasionally specific performance.12 III.
7 8

Rules of Interpretation and Construction

Pigeon, supra, at p. 5. See generally G.C. Thornton, Legislative Drafting, 2 Ed., London, 1979, at p. 53 et seq.; Daniel Jacoby, La composition des lois (1980), 40 Revue du Barreau 3 at p. 22 et seq. See also British and French Statutory Drafting: The Proceedings of the Franco-British Conference of 7 and 8 April 1986, Sir William Dale, ed., Institute for Advanced legal Studies, London, 1987, particularly the paper by Edward Caldwell, U.K. Parliamentary Counsel, where he stated (at p. 56): The typical Act of Parliament is long and detailed and attempts to state Parliaments intention with precision. It may leave some of the detail to be filled in by regulations, orders or other subordinate legislation but is unlikely to leave much of the new law to be developed by the courts. Acts which confine themselves to statements of general principle and leave the detailed development of the law to the courts are rare. 9 See British and French Statutory Drafting: The Proceedings of the Franco-British Conference of 7 and 8 April 1986, supra, where Lord Wilberforce, in his Opening Address (at p. 1), compared the English system of elaborate, detailed drafting, covering every individual case with the French [method] of elegant generalities from which applications are deduced. See also the Commentaires du ministre de la Justice on the Civil Code of Qubec 1994, vol. 1, Les Publications du Qubec, Quebec, 1993 at p. vii: Le Code civil constitute un ensemble lgislatif structur et hirarchis. Il ne dit pas tout; son rle est dtablir des rgles qui pourront sadapter la diversit des situations humaines et sociales et dintgrer les dveloppements scientifiques ou sociaux. (translation: The Civil Code constitutes a structured and systematic legislative whole. It does not provide for everything; its role is to establish rules which may be adapted to the diversity of human and social situations and integrate scientific and social developments.) 10 Although, as pointed out by G.C. Thornton: [i]t is unrealistic to believe that the laws should be drafted in language and in a style which is familiar and instantly intelligible to the man in the street, [n]evertheless the draftman must in each case endeavour to draft in such a way that the law is successfully communicated to the persons who make up the three groups [i.e. 1) The members of the lawmaking authority; 2) The members of society who are concerned with or affected by the law; 3) members of the judiciary]. (Thornton, supra, at p. 45.) 11 Remedies is a subject taught as a full course in common law schools, while neither remedies nor recourses is a civil law subject. 12 The different damages for delay (2 times freight) under arts. 5(2) and 6(1)(b) of the Hamburg Rules provide an example of a common law distinction (i.e. different damages for different types of claims).

1)

Civil law

Many authorities have written on the interpretation of civil codes. All have emphasized the concision of a civil code but few have written concisely on the matter.13 Mazeaud and Mignault are exceptions and have presented concise rules of interpretation. a) Mazeaud's rules of interpretation Mazeaud's rules of interpretation may be summarized as follows:14 i) When the text is clear, it should not be interpreted but rather applied purely and simply, provided however that such application does not lead to an absurdity. ii) When the text is obscure, the court must discover the intention of the legislator by examining the legislation as a whole as well as the provisions more immediately surrounding the obscure text. iii) If such examination does not suffice, the court may refer to the preparatory studies to discover the thinking of the legislator. These studies however are not binding on the court. iv) When the text does not directly provide a solution, the court must rely on the text as a starting point from which to discover the law. In other words, the text remains a framework into which new elements may be inserted. v) At times the court may base its decision on general principles of law (e.g. unjust enrichment) gleaned from the evolving jurisprudence. Such reliance must be made with circumspection and care. The court must not forsake the text in order to make equity its sole guide. vi) The court may also turn to the rules of logic in shaping its reasoning. For example, exceptions are to be strictly construed and specific language supersedes general language. b) Mignault's rules of interpretation P.B. Mignault's rules of interpretation may be summarized as follows:15
See J. Ghestin et G. Goubeaux, Trait de Droit Civil, Introduction Gnrale, 4 Ed., L.G.D.J., Paris, 1994, paras. 144-171, and Ch. Perelman, Logique juridique, nouvelle rhtorique, Paris, 1979, paras. 31 to 36. See also Jean Carbonnier, Authorities in Civil Law: France in Joseph Dainow, The Role of Judicial Decisions and Doctrine in Civil Law and in Mixed Jurisdictions, Louisiana State University Press, Baton Rouge, 1974 at p. 112 et seq. 14 Mazeaud, Leons de Droit Civil, 7 Ed., Paris, 1983, t. 1, vol. 1, at para. 110. 15 P.B. Mignault, Le Code Civil de La Province de Qubec et son Interprtation (1935-36), 1 U. of Toronto L.J. 104 at p. 124. Mignault summarized the rules of interpretation of F.P. Walton, The Scope
13

i)

First, one refers to the text of the code itself.

ii) Only if there is ambiguity in the text of the code may one refer to the official codifiers report (which is usually a statement by the drafters of the Code as to the sources of each article.) iii) If there still remains any doubt, one then refers to la doctrine, that is, the commentaries of recognized experts on the law.16 iv) Only if all else fails may one consider the reported decisions on the civil law. v) Finally, one may refer to the common law (le droit anglais), if the text in question has its origins in the common law.17 (Mignault's rules are especially useful in a mixed jurisdiction.) In general, it may be said that the interpretation of legislation in civil law jurisdictions is liberal, rather than restrictive, focusing on the purpose of the provisions as determined by the judge, and permitting the use of various external aids (e.g. the preparatory works, surrounding circumstances, and analogies).18
and Interpretation of the Civil Code of Lower Canada, Wilson & Lafleur Lte., Montreal, 1907. See reprint of Walton with an excellent introduction by Maurice Tancelin, Butterworths, Toronto, 1980. See also Pierre-Andr Ct, Les Rgles dinterprtation des lois: des guides et des arguments (1978) 13 Revue juridique Thmis 275. 16 That la doctrine ranks ahead of reported decisions of even the highest courts can be seen in the order of priority given in continental legal journals. In Droit Maritime Franais (DMF), the commentaries or articles on the law by experts are printed first each month, then the judgments of the Cour de Cassation, followed by the judgments of the Appeal Courts and finally the decisions in first instance. Writers on foreign law are put at the end. 17 See however, Lord Sumner in Quebec Railway, Light, Heat and Power Company v. Vandry [1920] A.C. 662 at pp. 671-672 (P.C.): Thus, however stimulating and suggestive the reasoning of French Courts or French jurists upon kindred subjects and not dissimilar texts undoubtedly is, recent French decisions, though entitled to the highest respect ... are not of binding authority in Quebec [citation omitted] still less can they prevail to alter or control what is and always must be remembered to be the language of a Legislature established within the British Empire. The foregoing remarks are quite inaccurate. The Qubec Civil Code (the Civil Code of Lower Canada) was drafted in its entirety by three Qubec Civil law jurists in the civil law style, relying for the most part on the Custom of Paris and the Code Napolon. The Qubec Civil Code was proclaimed law on May 26, 1866 by a proclamation of the government of the United Province of Canada (Ontario and Quebec) in virtue of a law of the Legislative Council and the Legislative Assembly of the United Province of Canada. (L.C. 1865, c. 41, September 18, 1865). In particular, Lord Sumner ignored the enlightened British practice of leaving to its colonies their original civil law (in this case French civil law) while at the same time imposing the British administrative system and British criminal law. 18 See A. Kiantou-Pampouki, The Interpretation of International Maritime Conventions in Civil Law and in Common Law, being the General Report presented to the XIII Conference of the International Academy of Comparative Law, Montreal, 1990 at p. 6: He [the civilian judge] is free to choose the methods or the instruments which he expects to assist him in providing a convincing solution, even outside the legal text, such as the preparatory works, the circumstances under which the law was enacted, as well as subsequent events regarding the law. He may correct the legal text, by restricting or enlarging its

2)

Common law

Perhaps the classic, or most famous statement, of common law statutory interpretation was by Sir Courtney Ilbert:19 Regard should be had to the general rules for the interpretation of statutes, as laid down in the ordinary textbooks. Among the most important of these are 1. The rule that an Act must be read as a whole. Therefore the language of one section may affect the construction of another. 2. The rule that an Act may be interpreted by reference to other Acts dealing with the same or a similar subject matter. Hence the language of those Acts must be studied. The meaning attached to a particular expression in one Act, either by definition or by judicial decision, may be attached to it in another. And variation of language may be construed as indicating change of intention. 3. The general rule that special provisions will control general provisions. 4. The similar rule that where particular words are followed by general words (horse, cow, or other animal), the generality of the latter will be limited by reference to the former (Ejusdem generis rule). 5. The general rule, subject to important exceptions, that a guilty mind is an essential element in a breach of criminal or penal law. It should, therefore, be considered whether the words wilfully or knowingly should be inserted, and whether, if not inserted, they would be implied, unless expressly negatived. 6. The presumption that the legislature does not intend any alteration in the rules or principles of the common law beyond what it expressly declares. 7. The presumption against an intention to oust or limit the jurisdiction of the superior courts. 8. The presumption that an Act of Parliament will not operate beyond the United Kingdom.

field of operation. He may also proceed to an analogy of law or form a new rule so that one way or another he may meet with new situations which are not covered by the text. 19 Sir Courtney Ilbert, Legislative Methods and Forms, H. Frowde, London, 1901, at pp. 250-251. See also Maxwell on the Interpretation of Statutes, 12 Ed., Sweet & Maxwell, London, 1969; Craies on Statute Law, 7 Ed., Sweet & Maxwell, London, 1971.

9. The presumption against any intention to contravene a rule of international law. 10. The rule that the Crown is not bound by an enactment unless specially named. 11. The presumption against the retrospective operation of a statute, subject to an exception as to enactments, which affect only the practice and procedure of the courts. 12. The rule that a power conferred on a public authority may be construed as a duty imposed on that authority (may = shall). In general, common law statutory construction, reflecting the historic role of statutes in England as correctives to gaps or defects of the common law, is restrictive. It focuses on the usual meaning of the words of the enactment, with a view to ascertaining and giving effect to the intention of the lawgiver as expressed in the text, and admitting few, if any, external aids to interpretation.20 3) Civil law vs common law interpretation of international conventions

It is not surprising that the difference between the more liberal civilian and the more restrictive common law methods of statutory interpretation is also reflected in their respective methods of construing international conventions.21 One of the clearest statements on this point was made by the English Court of Appeal in Canada Trust Co. and Others v. Stolzenberg and Others (No. 2),22 a case involving the interpretation of the Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1988.23 Citing the authors Briggs and Rees24 on that Convention and the similar Brussels Convention 1968,25 Waller, L.J. observed:26
20

See A. Kiantou-Pampouki, The Interpretation of International Maritime Conventions in Civil Law and in Common Law, supra, at p. 7: interpretation in Common Law is effected in view of the intent of the Legislator rather than the purpose of the law and is not as liberal as it is in Civil Law. The words used in statutes are taken in their ordinary grammatical meaning. In case of ambiguities the legislators intent is looked for in the text of the statute itself or in its context. There is no question of applying by analogy the solution provided by a statute for similar cases, because there is no such concept in english law as the punishable denial of justice. In any case, judges may turn to the Common Law to find solutions for the problems they are facing. 21 For an interesting comparison of the interpretation of international maritime conventions in civilian and common law countries, see the proceedings of the XIII Conference of the International Academy of Comparative Law, Montreal, Canada, 1990, where reports may be found on the interpretation of such conventions by courts in Australia, Belgium, Canada, Finland, France, Germany, Greece, Japan, the Netherlands, Poland, Sweden, the United Kingdom, the United States and Venezuela. 22 [1998] 1 All E.R. 318, [1998] 1 W.L.R. 547 (C.A.), affd [2002] 1 A.C. 1 (H.L.). 23 Adopted at Lugano, September 16, 1988 (O.J.E.C. 1988 L 391/9), the Lugano Convention 1988 establishes certain rules governing the jurisdiction of courts and the enforcement of judgments in civil and commercial matters as between States of the European Union and those belonging to the European Free Trade Association. The Lugano Convention was given the force of law in the United Kingdom by the Civil Jurisdiction and Judgments Act 1991, U.K. 1991, c. 12.

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The Conventions are European texts, designed and drafted by civil lawyers trained in the continental legal tradition; and they are interpreted by judges who are, by a large majority, civilian lawyers. The texts have to be understood, and interpreted, according to the European style, at least if they are to be understood in a way which will conform, to the views of the [European] Court of Justice. The English custom of interpreting, more or less literally, the precise relevant words, following the prior decisions of earlier courts, is not the European way. Instead, the Conventions are interpreted teleologically; that is to say, with a view predominantly given to the overall purposes of the Convention as a whole, as distinct from simply seeking to ascertain the natural meaning of a single provision in isolation from the rest of the text. For this reason, attention to the general principles underpinning the Convention, as the Court of Justice has declared them and as set out here, is the proper first step in the interpretation of any individual provision: they must be taken as read in all cases. A sound teleological argument may well defeat a good literal one. This pronouncement hearkens back to a similar comparison of English and Continental styles of interpretation, as well as drafting, of both statutes and conventions, made by Lord Denning, M.R. in Bulmer v. Bollinger,27 commenting on the European
24

A. Briggs & P. Rees, Civil Jurisdiction and Judgments, 2 Ed., Lloyds of London Press, London, 1997 at p. 16. 25 The Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, adopted at Brussels, September 27, 1968, as subsequently amended by various Accession Conventions admitting additional States to membership in the European Union (see O.J.E.C. 1982 L 285/1). The Brussels Convention 1968 establishes uniform rules on jurisdiction and the enforcement of judgments in civil and commercial matters for courts in countries of the European Union. It was given force of law in the U.K. by the Civil Jurisdiction and Judgments Act 1982, U.K. 1982, c. 27. 26 [1998] 1 All E.R. 318 at p. 332, [1998] 1 W.L.R. 547 at p. 562. 27 [1974] 2 All E.R. 1226 at p. 1237 (C.A): What a task is thus set before us! The treaty is quite unlike any of the enactments to which we have become accustomed. The draftsmen of our statutes have striven to express themselves with the utmost exactness. They have tried to foresee all possible circumstances that may arise and to provide for them. They have sacrificed style and simplicity. They have foregone brevity. They have become long and involved. In consequence, the judges have followed suit. They interpret a statute as applying only to the circumstances covered by the very words. They give them a literal interpretation. If the words of the statute do not cover a new situation -which was not foreseen - the judges hold that they have no power to fill the gap. To do so would be a naked usurpation of the legislative function: see Magor and St. Mellons Rural District Council v. Newport Corporation, [[1951] 2 All E.R. 839 at p. 841, [1952] A.C. 189 at p. 191, per Lord Simmonds]. How different is this treaty. It lays down general principles. It expresses its aims and purposes. All in sentences of moderate length and commendable style. But it lacks precision. It uses words and phrases without defining what they mean. An English lawyer would look for an interpretation clause, but he would look in vain. There is none. All the way through the treaty there are gaps and lacunae. These have to be filled in by the judges, or by regulations or directives. It is the European way. That appears from the decision of the Hamburg court in Re Tax on Imported Lemons [[1968] C.M.L.R. 1].

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Communities Act 1972,28 whereby the U.K. gave effect to the Treaty of Rome 1957, thus becoming a member of the European Economic Community.29 4) Vienna Convention on the Law of Treaties 1969

One of the most important international conventions ever adopted is the Vienna Convention on the Law of Treaties, 1969.30 It lays down basic rules governing the adoption, ratification, interpretation, implementation and denunciation of treaties and has itself been ratified or acceded to by most of the worlds nations,31 including those of both civil law and common law traditions. Its rules may therefore be considered as truly transnational. These rules codify customary international law in respect of treaty interpretation and therefore apply to the construction of the Hague Rules 1924 and the Hague/Visby Rules and the Hamburg Rules, although the Vienna Convention came into force only in 1980.32 The Vienna Convention on the Law of Treaties deals with Interpretation of Treaties in its Part III, section 3, which consists of only three articles: art. 31 on the General rule of interpretation; art. 32 on Supplementary means of interpretation; and art. 33 on Interpretation of treaties authenticated in two or more languages. Art. 31, the General rule of interpretation, provides:

28 29

U.K. 1972, c. 68. The Treaty Establishing the European Economic Community, adopted at Rome, March 25, 1957, and renamed the Treaty Establishing the European Community by the Treaty on European Union (the Treaty of Maastricht), adopted at Maastricht, February 7, 1992. 30 U.N. Doc. A/Conf. 39/27, adopted at Vienna, May 22, 1969 by a vote of 79-1 (France against), with 19 abstentions, and opened for signature on May 23, 1969. See the official text at 1155 U.N.T.S. 331, 8 I.L.M. 679. The Convention entered into force on January 27, 1980. 31 The Vienna Convention is in force in some 97 States. The United Kingdom signed it on April 20, 1970 and acceded to it on June 25, 1971. But it was published officially only in 1980. See U.K.T.S. 58 (1980), Cmnd. 7964. The United States signed the Convention on April 24, 1970 but has never ratified it, although it has been cited by American courts as a compendium of international norms applicable to various questions of treaty law. See Joseph D. Becker, The American Law of Nations. Public International Law in American Courts, Juris Publishing Inc., New York, 2001 at p. 34, citing Weinberger v. Rossi 456 U.S. 25 at p. 29, note 5 (1982) and Sale v. Haitian Centers Council 509 U.S. 155 at p. 191 (1993) (Blackmun, J. dissenting). See also the Restatment (Third) of Foreign Relations Law, adopted by the American Law Institute at Washington, D.C., May 14, 1986, West Publishing Co., St. Paul, Minn., 1987, sect. 325, comment (a): But it [the Vienna Convention] represents generally accepted principles and the United States has also appeared willing to accept them despite differences of nuance and emphasis. Canada ratified the Convention on October 14, 1970. On the Vienna Convention 1969 generally, see W. Tetley, Canadian Interpretation and Construction of Maritime Conventions (1991) 22 R.G.D. 109-128; and online (updated August 8, 2001) at http://tetley.law.mcgill.ca/maritime/interpretation.htm. 32 See Great China Metal Industries Co. Ltd. v. Malaysian International Shipping Corp. Berhad (The Bunga Seroja) (1998) 158 A.L.R. 1 at p. 19, note 97, [1999] 1 Lloyds Rep. 512 at pp. 523 and 553, note 97, 1999 AMC 429 at p. 450, note 97 (High C. of Aust.).

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1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.33 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;34 (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended. Art. 32 (Supplementary means of interpretation) provides: Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.
33

See also the Restatement (Third) of Foreign Relations Law, 1987 at sect. 325(1): (1) An international agreement is to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose. 34 See also the Restatement (Third) of the Foreign Relations Law of the United States, 1987 at sect. 325(2): Any subsequent agreement between the parties regarding the interpretation of the [international] agreement, and subsequent practice between the parties in the application of the agreement, are to be taken into account in its interpretation.

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Art. 33 on Interpretation of treaties authenticated in two or more languages provides:35 1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail. 2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree. 3. The terms of the treaty are presumed to have the same meaning in each authentic text. 4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted. 4) Mixed Jurisdictions

Mixed jurisdictions are legal systems in which the Romano-Germanic tradition has become suffused to some degree by Anglo-American law.36 Examples are Scotland, Louisiana, Qubec and the Republic of South Africa. In these jurisdictions, there are often codes which follow the civil law tradition of interpretation, while there are also statutes which are construed in the common law manner.37 IV. Hague and Hague/Visby Rules - Codifying Statutes

See generally Peter Germer, Interpretation of Plurilingual Treaties: A Study of Article 33 of the Vienna Convention on the Law of Treaties (1970) 11 Harv. Intl L.J. 400. 36 F.P. Walton, The Scope and Interpretation of the Civil Code, Toronto, 1980, with an introduction by Maurice Tancelin, at p. 1. The term mixed jurisdictions was apparently first coined by Professor T.B. Smith of Edinburgh. See T.B. Smith, The Preservation of the Civilian Tradition in Mixed Jurisdictions, to be found in A.N. Yiannopoulos, ed., Civil Law and the Modern World, Louisiana State University Press, Baton Rouge, Louisiana, 1965 at pp. 4 and 25. On mixed jurisdictions generally, see V.V. Palmer, ed., Mixed Jurisdictions Worldwide: The Third Legal Family, Cambridge University Press, 2001; and W. Tetley, Mixed Jurisdictions: Common Law vs. Civil Law (Codified and Uncodified) (1999-3) Unif. L. Rev. (N.S.) 591-619 (Part I) and (1999-4) Unif. L. Rev.877-907 (Part II); reprinted in (2000) 60 La. L. Rev. 677-738, and at http://tetley.law.mcgill.ca/comparative/mixedjur.pdf. 37 On the duality of methods of interpretation in Qubec and the autonomy of the civil law, see P.-A. Ct, The Interpretation of Legislation in Canada, 3 Ed., Carswell, Toronto, 2000 at pp. 26-33; Walton, op. cit., especially the introduction of M. Tancelin; P.B. Mignault, Le Code Civil de la Province de Qubec: et son Interprtation (1935-36) 1 U. of Toronto L.J. 104.

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Neither the Hague38 nor the Hague/Visby Rules39 is a code in the civil law drafting style. Rather each is a hybrid civil law/common law (mostly common law) style statute. Nor do the Hague and Hague/Visby Rules codify all existing law. Instead they are a compromise invoking some new law in order to satisfy the varying interests of carriers and shippers at the time of their adoption. As such they are what may be called codifying statutes. The same is true of the Hamburg Rules40 and of the Multimodal Convention.41 These Rules codify much of the law of the past, but also add new law for the future. A very useful statement on such codifying statutes was made by Lord Herschell in the Bank of England v. Vagliano Brothers,42 when he commented on the Bills of Exchange Act43 and its interpretation:44 My Lords, with sincere respect for the learned Judges who have taken this view, I cannot bring myself to think that this is the proper way to deal with such a statute as the Bills of Exchange Act, which was intended to be a code of the law relating to negotiable instruments. I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view. ... One further remark I have to make before I proceed to consider the language of the statute. The Bills of Exchange Act was certainly not intended to be merely a code of the existing law. It is not open to question that it was intended to alter, and did alter it in certain respects. And I do not think that it is to be presumed that any particular provision was intended to be a statement of the existing law, rather than a substituted enactment. The importance, therefore, of identifying the Hague and Hague/Visby Rules as codifying statutes lies in the manner in which they should be treated by the courts. When they are being interpreted, their actual terms must first be considered before resorting to assistance from the law as it existed before their adoption. V.
38 39

Stare Decisis

Signed at Brussels, August 25, 1924 and in force June 2, 1931. Protocol to the Hague Rules, signed at Brussels, February 23, 1968 and in force June 23, 1977. 40 Adopted at Hamburg, March 30, 1978 and in force November 1, 1992. 41 Adopted at Geneva, May 24, 1980, not in force. 42 [1891] A.C. 107 (H.L.). 43 U.K., 45 & 46 Vict., c. 61 (1882). 44 [1891] A.C. 107 at pp. 144-45.

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1)

Common law

Stare decisis is the principle by which an inferior court abides by or adheres to decisions of superior courts within the same jurisdiction on legal principles forming part of the ratio decidendi of the case. The purpose of stare decisis is to give uniformity, continuity and predictability to the law.45 The decisions of one court, however, are not absolutely binding either on courts of co-ordinate authority or on that court itself.46 It can be said, nevertheless, that there is a rule of etiquette or conventional decorum47 that courts of co-ordinate authority will defer to the opinions of one another for the sake of certainty, stability, and propriety in the law.48 The classic statement regarding stare decisis was made by Brett M.R. in The Vera Cruz (No. 2):49 It was the custom for each of the Courts in Westminster Hall to hold itself bound by a previous decision of itself or of a Court of co-ordinate jurisdiction. But there is no statute or common law rule by which one Court is bound to abide by the decision of another of equal rank, it does so simply from what may be called the comity among judges. In the same way there is no common law or statutory rule to oblige a Court to bow to its own decisions, it does so again on the grounds of judicial comity. Only where there is a demonstrably strong reason for doing so will the decision of a trial judge not be followed. What constitutes a strong reason for not following a prior decision by a judge of co-ordinate authority was discussed by McRuer C.J.H.C., in Reg. v. Northern Electric Co. Ltd.:50 strong reason ... does not mean a strong argumentative reason appealing to the particular Judge, but something that may indicate that the prior decision was given without consideration of a statute or some authority that ought to have been followed. I do not think strong reason to the
For an overview of stare decisis and the extent to which the rule is followed in the different English courts, see chaps. 3 and 4 of Sir Rupert Cross, Precedent in English Law, 4 Ed., Clarendon Press, Oxford, 1991; Terence Ingman, The English Legal Process, 9 Ed., Oxford University Press, Oxford, 2002 at chap. 9. 46 Sir Frederick Pollock, First Book of Jurisprudence, 6 Ed., MacMillan, London, 1929 at p. 321, cited by Hogg J. in R. ex rel. McWilliam v. Morris (1942) 51 O.W.N. 447 at pp. 448-9 (Ont. High Ct.). 47 Marconi Wireless Telegraph v. Canadian Car & Foundry Co. (1919) 44 D.L.R. 378 at p. 379, (1919) 18 Ex. C.R. 241 at p. 244. 48 See J. David Murphy and Robert Rueter, Stare Decisis in Commonwealth Appellate Courts, Butterworths, Toronto, 1981, at p. 2; see also George F. Curtis, Stare Decisis at Common Law in Canada (1978) 12 U. B. C. Law Rev. 1 at p. 8. 49 (1884) 9 P.D. 96 at p. 98 (C.A.); see also statements by Brown J. in Mast, Foos & Co. v. Stover Mfg. Co. 177 U.S. 485 at p. 488 (1900) and by the Earl of Halsbury in London Tramways Co. Ltd. v. London County Council [1898] A.C. 375 (H.L.). 50 [1955] 3 D.L.R. 449 at p. 466 (Ont. High Ct.).
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contrary is to be construed according to the flexibility of the mind of the particular judge. 2) Civil law a) Continental civil law jurisdictions Stare decisis is presumably not observed in continental civil law jurisdictions. Nevertheless, in France, for example, even though the judge does not regard himself as absolutely bound by the decision of any court in a single previous instance, he nonetheless endeavours to ascertain the trend of recent decisions on a particular point. It therefore can be said that: The practice of the courts does not become a source of the law until it is definitely fixed by repetition of precedents which are in agreement on a single point.51 It should be noted, however, that the decisions of trial, appeal and supreme courts are published and referred to in la doctrine.52 The supreme court (Cour de Cassation) was instituted in France because of the fear that local judges would not always promote the uniformity sought for in legislation. The role of the supreme court is to watch over the preservation of the law and to recall the courts to its observance by quashing judgments rendered contrary to its prescriptions.53 One decision, however, never relies on or cites another.54
E. Lambert and M.J. Wasserman, The Case Method in Canada and the Possibilities of its Adaptation to the Civil Law (1929-30) 39 Yale L.J. 1 at p. 15, quoted in Cross, supra, at p. 12. See also D. Pollard, Sourcebook on French Law, Cavendish Publishing Limited, London, 1997 at p. xxiv [hereafter cited as D. Pollard, Sourcebook on French law, 1997]: If the Cour de Cassation continues to repeat its formula [often the first sentence of the decision, summarizing the principle of law concerned], and this is then repeated and applied by the Cours dappel and the lower courts, a jurisprudence constante becomes in effect something akin to a precedent as understood by common lawyers. See also Kahn-Freund, Lvy & Rudden, A Source-Book on French Law, 3 Ed., 1991 at pp. 242-244, citing J. Carbonnier, Droit civil, vol. 1, 1988 at para. 144. 52 This raises the interesting question of the de jure authority of precedents in French law as opposed to their de facto persuasiveness. The following comment by P. Esmein illustrates the intrinsic ambiguity that surrounds the notion of judicial precedent in France: La doctrine anglaise de lautorit des prcdents dispense les Anglais de se livrer la discussion, jamais close chez nous, de savoir si la jurisprudence constitue une source du droit. Ce dbat est sans issue, car il faut rpondre non et oui, suivant quon se place dans le champ des ides pures ou quon considre la ralit des faits. Sur le plan des ides, lart. 5. C. civ., en interdisant aux juges de se prononcer par voie de disposition gnrale et rglementaire sur les causes qui leur sont soumises, exclut quils soient obligs de statuer comme eux-mmes, ou d'autres juges, mme suprieurs, ont statu antrieurement ... Mais lorsque quelquun, pour la gestion de ses propres intrts, ou comme conseiller d'autrui, veut savoir comment un problme de droit sera rsolu, il recherche dans les dcisions de justice comment il la t antrieurement. Il nest pas dautre faon de prvoir ce qui sera jug. P. Esmein, La jurisprudence et la loi (1952) 50 Rev. trim. dr. civ. 17 at p. 19. 53 Ernest Faye, La Cour de Cassation, Paris, 1970 (reprint of the 1903 Paris edition), at p. 1. See also D. Pollard, Sourcebook on French Law, 1997 at p. xviii and Kahn-Freund, Lvy & Rudden, A Source-Book on French Law, 3 Ed., 1991 at p. 260. 54 Art. 5 of the Civil Code (France) expressly prohibits any judicial decision to act as controlling in a future litigation (arrts de rglement). No such similar article appears in the Qubec Civil Code of 1866 or the Louisiana Civil Code of 1985. Art. 5, the equivalent article in the Belgian Civil Code, was abolished on October 10, 1967. See Planiol, Trait Elmentaire de Droit Civil, 5 Ed., Paris, 1950, para. 128. J. Ghestin et G. Goubeaux, Trait de Droit Civil, Introduction Gnrale, 4 Ed., Paris, 1994, para. 478.
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The purpose of a judgment in a civil law jurisdiction is to settle a particular dispute, and the decision is not intended as a guide to settle future disputes.55 In France this results in a very large Supreme Court, in that the Cour de Cassation has six divisions for a total of 85 judges.56 There exists as well a Conseil dtat57 and a Conseil Constitutionnel.58 In comparison, the United States has a Supreme Court of nine justices, as does Canada, while there are approximately a dozen active Law Lords in the United Kingdom at any one time. Civil law decisions in France are brief usually only three or four printed pages in a style that is quite original. The opinions are written in a single sentence and rarely refer to the facts.59 A French Supreme Court decision will usually send the case back to the Appeal Court with an order to rectify its decision along certain lines, and the appeal courts do the same thing to the trial court decisions when they overturn them. Most reported decisions are followed by a brief commentary on the decision by a noted authority or doctor of law. These commentaries, which outline the facts and the law, are far more valuable (except to the parties) than the judgment, and it is these commentaries that form part of la doctrine.60
Nevertheless, civil law courts will on occasion direct new trends in the law or even make new law. For example, the Cour de Cassation of France in the Arrt Desmares, Cour de Cassation July 21, 1982, Bull. 1982, II, No. 111, at p. 81, D. 1982, 449, with note by Christian Larroumet, broke completely with the doctrine and the clear meaning of art. 1384(l) c.c. to deny proportionate fault in a car/ pedestrian accident. The driver and his insurer were obliged to compensate the victim fully. See also J.Ghestin & G. Goubeaux, Trait de Droit Civil. Introduction Gnrale, 4 Ed., Paris, 1994 at para. 480, concerning the attitude of some French courts to abusive clauses in consumer contracts. 56 As of 1996, the Cour de Cassation had 85 full judges, as well as 43 assistant judges (conseillers rfrendaires) and 18 newly qualified judges acting as administrative assistants (auditeurs). See C. Elliott & C. Vernon, French Legal System, Longman, Pearson Education Limited, Harlow, England, 2000 at p. 68. 57 The primary functions of the Conseil dtat are: (1) to review and comment on legislative proposals (les projets de lois, as well as certain decrees, (2) to act as court of instance in certain areas of administrative law, and (3) to act as the supreme court for decisions rendered by administrative courts and administrative courts of appeal. The Conseil dtat is now governed by the Code de justice administrative, arts. L-111-1 to L.137-1 and R.112-1 to R.135-11, which were enacted by Ordonnance no. 2000-387 (Partie lgislative) of May 4, 2000 and Decrees nos. 2000-388 and 2000-389 of May 4, 2000 (Partie rglementaire) and which together replace the former Ordonnance no. 45-1708 of July 31, 1945 and the two decrees of July 30, 1963 (Decrees nos. 63-766 and 63-767) as amended. See Yves Gaudemet, Trait de droit administratif, 16 Ed., tome 1, L.G.D.J., Paris, 2001 at paras. 735-753; Jean Gicquel, Droit constitutionnel et institutions politques, 18 Ed., Montchrestien, Paris, 2002 at pp. 606-607. 58 The role of the Conseil Constitutionnel is essentially to act as protector of individual liberties and to regulate the activities of government (les pouvoirs publics). It also supervises elections and judges disputes related to them. See Title VII (arts. 56-63) of the French Constitution of October 4, 1958 and Ordonnance no. 58-1067 of November 7, 1958. See also C. Elliott & C. Vernon, French Legal System, Longman, Pearson Education Limited, Harlow, England, 2000 at pp. 78-82; Jean Gicquel, Droit constitutionnel et institutions politiques, 18 Ed., Montchrestien, Paris, 2002, at pp. 715-730. 59 For a sympathetic explanation of the French manner of drafting judgments, see Pierre Mimin, Le Style des Jugements, 4 Ed., Librairies techniques, Paris, 1978, at pp. 185 and 187. See also A. Touffait and A. Tunc, Pour une motivation plus explicite des dcisions de justice, notamment de celles de la Cour de Cassation (1974), 72 Rev. Trim. dr. civ. 487. See also Ch. Perelman, Logique juridique, nouvelle rhtorique, Paris, 1979, para. 83. 60 A French author of the turn of the century, E. Meynial assigns to the elaborate case annotation perhaps the most characteristic and original element of French legal writing a major historic role in bridging the gap between academic theory (lcole) and judicial and advocational practice (le Palais). Meynial, Les Recueils darrts et les Arrtistes, in Livre du centenaire du Code civil, t. 1, Paris, 1979 (reprint of the
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b) Mixed jurisdictions Quebec and Louisiana are mixed jurisdictions, having civil law codes but common law style statutes, legal administrations and court systems. The result is that these mixed jurisdictions have civil law codes, which are drafted and interpreted in the civil law tradition, while the decisions of the courts are written in the common law style and are acknowledged as binding precedent. Stare decisis is as strong in a mixed jurisdiction as in a common law jurisdiction.61 3) Stare decisis - the supreme courts

The highest court of a common law jurisdiction is usually bound by its own decisions. Most supreme courts, nevertheless, have held that this does not apply in every case. a) The Court of Justice of the European Communities The decision and opinions of the Court of Justice of the European Communities (the European Court of Justice) interpreting European Union treaties and other Community legislation are binding on United Kingdom courts, including the House of Lords, as they are on all the highest courts of member-States of the E.U.62 Also binding on those national courts are the preliminary rulings rendered by the European Court of Justice63 on questions of interpretation of the E.U. treaties, the validity and interpretation of acts of the institutions of the E.U. and the European Central Bank, and the interpretation of statutes of bodies established by an act of the Council, in response to references made by national courts of E.U. member-States under art. 234 of the Treaty Establishing the European Community.64 b) The European Court of Human Rights

1904 Paris edition), at pp. 173 et seq. See generally Kahn-Freund, Lvy and Rudden, A Source-book on French Law, 3 Ed., 1991 at pp. 255-258. See also D. Pollard, Sourcebook on French Law, 1997 at p. xxv. 61 See J.-L. Baudouin, The Impact of the Common Law on the Civilian Systems of Louisiana and Quebec, in J. Dainow (ed.), The Role of Judicial Decisions and Doctrine in Civil Law and in Mixed Jurisdictions, Baton Rouge, 1974, at pp. 11 et seq. and W. Friedmann, Stare Decisis at Common Law and under the Civil Code of Quebec (1953) 31 Can. Bar Rev. 723 at p. 741 et seq. 62 In the specific case of the United Kingdom, see the European Communities Act, 1972, U.K. 1972, c. 68, sect. 3, as amended by the European Communities (Amendment) Act 1986, U.K. 1986, c. 58, sect. 2; Ingram, supra at pp. 377 and 388. 63 Note, however, that the European Court of Justice itself is not bound by its own judgments or opinions. See Ingman, supra at p. 388. 64 The Treaty Establishing the European Community is the Treaty of Rome of March 25, 1957, originally called the Treaty Establishing the European Economic Community, but renamed by the Treaty on European Union (the Treaty of Maastricht) of 1992.

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Since the European Convention on Human Rights65 has become directly applicable in the U.K., pursuant to the Human Rights Act 1998,66 U.K. courts, in ruling on cases arising under the Convention, are obliged to take account of any relevant judgments, decisions, declarations and opinions of the European Court of Human Rights, the European Commission and the Committee of Ministers of the Council of Europe, wherever made or given.67 c) The House of Lords In 1966, a Practice Statement (Judicial Precedent) was issued in the House of Lords as follows:68 Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. Their Lordships nevertheless recognize that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so. In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements or property and
The Convention for the Protection of Human Rights and Fundamental Freedoms, agreed by the Council of Europe at Rome on 4th November 1950, to which the U.K. became a party in 1951. 66 U.K. 1998, c. 42, in force October 2, 2000. 67 Human Rights Act 1998, sect. 2(1). 68 [1966] 1 W.L.R. 1234, [1966] 3 All E.R. 77 (H.L.). As the following judgments make it clear, the power of the House of Lords to overrule one of its own previous decisions will be used very sparingly: Reg. v. National Insurance Commissioner, Ex parte Hudson [1972] A.C. 944 and Carter v. Bradbeer [1975] W.L.R. 1204 (H.L.). See also Fitzleet Estates Ltd. v. Cherry [1977] 3 All E.R. 996 (H.L.). In Food Corp. of India v. Antclizo Shipping Corp. [1988] 2 All E.R. 513 at p. 516, [1988] 2 Lloyds Rep. 93 at p. 96 (H.L.), it was held that to justify a review, the Law Lords must feel free to depart from both the reasoning and the decision in the previous case, and they must be satisfied that such a departure would help resolve the dispute in the case at bar. In R. v. Secretary of State for the Home Department (ex parte Khawaja) [1983] 2 W.L.R. 321 at p. 339 (H.L.)., Lord Scarman construed the Practice Statement of 1966 to mean that the House of Lords, before departing from a previous decision must be satisfied: 1) that continued adherence to the precedent would involve the risk of injustice and would obstruct the proper development of the law; and 2) that departure from the precedent was the safe and appropriate way of remedying the injustice and developing the law. For an example of a reversal meeting these criteria, see Kleinwort Benson Ltd. v. Lincoln City Council [1998] 4 All E.R. 513 (H.L.), where the 200-year-old common law rule that money paid under a mistake of fact could not be recovered, was overruled, and should be abolished, as it had been in other Commonwealth countries and as the Law Commission had recommended in 1994.
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fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law. This announcement is not intended to affect the use of precedent elsewhere than in this House. d) The Supreme Court of the United States The importance of the stare decisis doctrine in admiralty in the United States stems from the power of the Supreme Court to fashion substantive rules of law which then become binding upon the lower Circuit Courts of Appeal and the District Courts.69 This power was given to the Supreme Court by the grant of maritime and admiralty jurisdiction in article III of the U.S. Constitution. The result, as stated by the U.S. Supreme Court in United States v. Reliable Transfer, is the Court's ability to fashion the substantive law in admiralty matters:70 But the judiciary has traditionally taken the lead in formulating flexible and fair remedies in the law maritime, and Congress has largely left to this Court the responsibility for fashioning the controlling rules of admiralty law. Fitzgerald v. United States Lines Co., 374 U. S. 16, 20. More recently, the Eleventh Circuit relied upon this grant of power in Schiffs. Leonhardt v. A. Bottacchi,71 to declare that the admiralty attachment under the general maritime law as it was at the time of the adoption of the Constitution, co-exists with the attachment under Supplemental Rule B, because Congress did not specifically abrogate that attachment. The rationale for the stare decisis doctrine was explained by the Supreme Court in Moragne v. States Marine Lines as follows:72 Very weighty considerations underlie the principle that courts should not lightly overrule past decisions. Among these are the desirability that the law furnish a clear guide for the conduct of individuals, to enable them to
For an example of a U.S. Supreme Court decision changing the prior American maritime law as expounded by the circuits courts of appeals and the district courts, see Vimar Seguros y Reaseguros S.A. v. M/V Sky Reefer 515 U.S. 528, 1995 AMC 1817 (1995), where the Supreme Court, overturning Indussa Corp. v. S.S. Ranborg 377 F.2d 200, 1967 AMC 589 (2 Cir. en banc 1967) and many other precedents flowing from it, found that foreign arbitration clauses in bills of lading did not per se relieve or lessen the carriers liability contrary to sect. 3(8) of U.S. COGSA (46 U.S.C. Appx. 1303(8)), and hence were not per se unenforceable in the United States. 70 421 U. S. 397 at p. 409, 1975 AMC 541 at p. 550 (1975). Another major change made by a U.S. Supreme Court decision in American admiralty law was the elimination of the common-law contributory negligence bar to recovery in ship collision, in favour of the comparative (proportional) fault rule of division of collision damages - a rule which was later enshrined in the Collision Convention 1910. See The Max Morris 137 U.S. 1 at pp. 14-15 (1890). 71 773 F.2d 1528, 1986 AMC 1 (11 Cir. en banc 1985). 72 398 U.S. 375 at p. 403, 1970 AMC 967 at p. 989 (1970).
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plan their affairs with assurance against untoward surprise; the importance of furthering fair and expeditious adjudication by eliminating the need to relitigate every relevant proposition in every case; and the necessity of maintaining public faith in the judiciary as a source of impersonal and reasoned judgments. The reasons for rejecting any established rule must always be weighed against these factors. The Fifth Circuit, citing the above holding in Moragne in Coats v. Penrod Drilling Corp.,73 made an interesting reflection on the special importance of the first factor (predictability of decisions) for maritime law: With respect to the first factor, considered to be the mainstay of stare decisis,, we recognize that the need for predictability in the commercial maritime arena is arguably greater than in other areas of law and commerce. This is true because there are already numerous and inherently unpredictable factors stemming from the perils of the sea and the continual - and frequently fortuitous - interaction with enterprises of other nations. It is axiomatic that when the rules of law are clear, parties may contract within or around their boundaries, and the commercial system is facilitated in many ways, including reduced litigation, more favorable insurance coverage, and overall ease of application. The Supreme Court of the United States, while willing to change its own case-law where indicated, nevertheless does not depart lightly from its own established precedents. In Dickerson v. U.S., for example, it held that:74 stare decisis carries such persuasive force that the Court has always required a departure from precedent to be supported by some special justification. The U.S. Supreme Court has declared itself to be particularly wary of disturbing precedent in matters of statutory construction.75 e) The Supreme Court of Canada The most authoritative Canadian statement on the meaning of obiter and stare decisis, and whether the Courts of Appeal of Canada are bound by decisions of the Supreme Court of Canada is to be found in Binus v. The Queen:76 If the matter were res integra I would find the reasoning of my brother Judson and that of Laskin J.A. in the case at bar most persuasive; but it
61 F.3d 1113 at p. 1137, 1996 AMC 1 at p. 38 (5 Cir. 1995). 530 U.S. 428 at p. 429 (2000). See also Arizona v. Rumsey 467 U.S. 203, 212 (1984), to the same effect. 75 the burden borne by the party advocating the abandonment of an established precedent is greater where the [Supreme] Court is asked to overrule a point of statutory construction (since) considerations of stare decisis have special force in the area of statutory interpretation (where) the legislative power is implicated, and Congress remains free to alter what we have done." Patterson v. McLean Credit Union 491 U.S. 164 at p. 173 (1989). For an interesting analysis of precedent in the U.S. Supreme Court, see Saul Brenner & Harold J. Spaeth, Stare Indecisis. The Alteration of Precedent on the Supreme Court, 19461992, Cambridge University Press, 1995. 76 [1967] S.C.R. 594 at pp. 600-601.
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appears to me that in Mann v. The Queen, [1960] S.C.R. 238 at least five of the seven members of this Court who heard the appeal decided that proof of inadvertent negligence is not sufficient to support a conviction under s. 221(4) and that in so deciding they were expressing a legal proposition which was a necessary step to the judgment pronounced. I find it impossible to treat what was said in this regard as obiter, and, in my respectful view, that proposition should have been accepted by the Court of Appeal under the principle of stare decisis. The binding effect of a proposition of law enunciated as a necessary step to the judgment pronounced is not lessened by the circumstance that the Court might have reached the same result for other reasons. Cartwright J. then commented on whether the Supreme Court of Canada was bound by its own decisions:77 I do not doubt the power of this Court to depart from a previous judgment of its own but, where the earlier decision has not been made per incuriam, and especially in cases in which Parliament or the Legislature is free to alter the law on the point decided, I think that such a departure should be made only for compelling reasons. The ancient warning, repeated by Anglin CJ.C. in Daoust, Lalonde & Cie Lte v. Ferland, [1932] S.C.R. 343 at p. 351, (1932) 2 D.L.R. 642 at p. 651, ubi jus est aut vagum aut incertum, ibi maxima servitus prevalebit, should not be forgotten. In 1975, in Harrison v. Carswell,78 Chief Justice Laskin of the Supreme Court, while dissenting on the main issue, elucidated further: This Court, above all others in this country cannot be simply mechanistic about previous decisions, whatever be the respect it would pay to such decisions. What we would be doing here, if we were to say that the Peters case, because it was so recently decided, has concluded the present case for us, would be to take merely one side of a debatable issue and say that it concludes that debate without the need to hear the other side. I do not have to call upon pronouncements of members of this Court that we are free to depart from previous decisions in order to support the pressing need to examine the present case on its merits. The Supreme Court has repeatedly reaffirmed its authority to overrule its prior case-law, where compelling reasons for doing so are demonstrated.79
Ibid. at p. 601. See also the explicit approval of Cartwright, J.s holding on this point in Minister of Indian Affairs v. Ranville [1982] 2 S.C.R. 518 at p. 528 per Ritchie, J. 78 [1976] 2 S.C.R. 200 at p. 205, (1976) 62 D.L.R. (3d) 68 at pp. 71-72. 79 See Reference Re The Farm Products Marketing Act [1957] S.C.R. 198 at p. 212; Binus v. The Queen [1967] S.C.R. 594 at p. 601; Peda v. The Queen [1969] S.C.R. 905 at p. 911; Barnett v. Harrison [1976] 2
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Thus one can say that in Canada the courts of appeal and the lower courts are bound by the decisions of the Supreme Court,80 and the lower courts are bound by the decisions of the appeal courts. The Supreme Court of Canada itself, is not bound by its own decisions, however.81 4) Stare Decisis - Intermediate Appeal Courts To what extent are the courts of intermediate appeal (i.e. appellate courts whose decisions are subject to review by a higher court) bound by their own decisions? a) The United Kingdom In the United Kingdom, the Court of Appeal is bound by decisions of the House of Lords, but is not absolutely bound by its prior decisions. Thus, in Young v. Bristol Aeroplane Co.,82 Lord Greene M.R., in referring to the Court of Appeal of the United Kingdom, stated: The Court is entitled and bound to decide which of two conflicting decisions of its own it will follow. In fact, the Young decision listed three categories of case in which the Court of Appeal was authorized to depart from one its own previous decisions:83 1) where its previous decisions were in conflict with one another;84 2) where one of its previous decision was inconsistent with a House of Lords decision, even if the previous decision had not been expressly overruled by the Law Lords;85 and 3) where its previous decision had been rendered per incuriam (i.e. by mistake or carelessness).86
S.C.R. 531 at p. 559; Capital Cities Communications Inc. v. Canadian Radio-Television Commission [1978] 2 S.C.R. 141 at p. 161; A.V.G. Management Science Ltd. v. Barwell Developments Ltd. [1979] 2 S.C.R. 43, at p. 57; Bell v. The Queen [1979] 2 S.C.R. 212 at pp. 219-220; Minister of Indian Affairs and Northern Development v. Ranville [1982] 2 S.C.R. 518 at p. 527; R. v. Bernard [1988] 2 S.C.R. 833 at pp. 849-850; R. v. Robinson [1996] 1 S.C.R. 683 at p. 724: It is beyond doubt that this Court has the power to overrule one of its previous decisions if there are compelling reasons for departing from the principle of stare decisis. (per LHeureux-Dub, J., dissenting on other grounds). 80 See R. v. Robinson [1996] 1 S.C.R. 683 at pp. 724-725 (per LHeureux-Dub, J.): In our system of law, lower courts are obliged to follow the decisions of this Court and, if they fail to do so, they may be in error. 81 For examples of the Supreme Court of Canada refusing to follow its own precedents, where departing from them appeared reasonable and just, see Paquette v. The Queen [1977] 2 S.C.R. 189 at p. 197; McNamara Construction (Western) Ltd. v. The Queen [1977] 2 S.C.R. 654 at p. 661; Vetrovec v. The Queen [1982] 1 S.C.R. 811 at p. 830; R. v. Bernard [1988] 2 S.C.R. 833 at p. 850; Clark v. CNR [1988] 2 S.C.R. 680 at p. 704; Alberta Human Rights Commission v. Central Alberta Dairy Pool [1990] 2 S.C.R. 489 at pp. 512 and 517; R. v. Robinson [1996] 1 S.C.R. 683 at pp. 710 and 738. 82 [1944] K.B. 718 at p. 729,[194412 All E.R. 293 at p. 300 (C.A.). 83 See generally T. Ingman, English Legal System, 5 Ed., Oxford University Press, Oxford, 2000 at pp.401403. 84 See, for example, National Westminster Bank plc v. Powney [1990] 2 All E.R. 416 (C.A.); Finnegan v. Parkside Health Authority [1998] 1 All E.R. 595 (C.A.). 85 See, for example, Family Housing Association v. Jones [1990] 1 All E.R. 385 (C.A.). 86 Most often, a decision is rendered per incuriam, where the court fails to consider a particular statute which applies or some binding precedent relevant to the case. See, for example, Duke v. Reliance Systems Ltd. [1987] 2 All E.R. 858 (C.A.), upheld without discussion of the per incuriam point in Duke v. G.E.C. Reliance Ltd. [1988] A.C. 618 (H.L.).

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Lord Denning took a wider view, believing that after 1966, House of Lords decisions were no longer binding on the Court of Appeal,87 and that the Court of Appeal itself was free to depart from its own precedents generally, and not just in the three exceptional cases identified in Young. On the latter point, he declared in Gallie v. Lee:88 I do not think we are bound by prior decisions of our own, or at any rate, not absolutely bound .We are not fettered as it was once thought. It was a self-imposed limitation: and we who imposed it can also removed it. The House of Lords have done it. So why should not we do likewise? We should be just as free,, no more and no less, to depart from a prior precedent of our own, as in like case is the House of Lords or a judge of first instance. It is very, very rarely that we will go against a previous decision of our own, but if it is clearly shown to be erroneous, we should be able to put it right. Lord Dennings position did not find favour with the Law Lords, who criticized his conclusion in a number of decisions, reaffirming that the House of Lords bound the Court of Appeal89 (even where the Houses decisions were wrong) and that the Court of Appeal could only abandon its own previous case-law in the three exceptional situations evoked in Young.90 One particularly strong rebuff was voiced by Lord Scarman in Davis v. Johnston:91 [T]he rule as it had been laid down in the Bristol Aeroplane case had never been questioned thereafter until, following upon the announcement by Lord Gardiner LC in 1966 that the House of Lords would feel free in exceptional cases to depart from a previous decision of its own, Lord Denning MR conducted what may be described, I hope without offence, as a one-man crusade with the object of freeing the Court of Appeal from the shackles which the doctrine of stare decisis imposed upon its liberty of decision. In my opinion, this House should take this occasion to reaffirm expressly, unequivocally and unanimously that the rule laid down in the Bristol Aeroplance case as to stare decisis is still binding on the Court of Appeal.

See, for example, Lord Dennings statements in Schorsch Meier GmbH. v. Hennin [1975] Q.B. 416 at pp. 424-425 (C.A.). 88 [1969] 2 Ch. 17 at p. 37, [1969] 1 All E.R. 1062 at p. 1072 (C.A.). See also Tiverton Estates Ltd. v. Wearwell Ltd. [1975] Ch. 146 at p. 160, [1974] 1 All E.R. 209 at p. 218 (C.A.). 89 Cassell & Co. Ltd. v. Broome [1972] A.C. 1027 at p. 1054 (H.L. per Lord Scarman); Miliangos v. George Frank (Textile) Ltd. [1976] A.C. 443 at p. 496 (H.L. per Lord Cross). 90 Tiverton Estates Ltd. V. Wearwell Ltd. [1975] Ch. 146 at pp. 72-173 (H.L. per Lord Scarman); Davis v. Johnston [1979] A.C. 264 (H.L.). Lord Denning described the House of Lords decision in Davis as my most humiliating defeat. See The Discipline of the Law, 1979 at p. 299. 91 [1979] A.C. 264 at pp. 325-328 (H.L.).

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Today, it seems clear that the Court of Appeal is bound by the House of Lords. It is also likely that the Court of Appeal, as well as the House of Lords and the lower courts, would be bound by decisions of the European Court with respect to matters of European Union law as it applies to the U.K.92 Of course, Court of Appeal decisions are binding on the High Court and the county courts, but not on the House of Lords. b) The United States Circuit Courts of Appeals The role of stare decisis and precedent in general is unique in the United States because of the particular make-up of the federal judiciary. Since the federal courts have jurisdiction over all admiralty and maritime cases,93 it is important to understand the potential effect of a particular decision upon the other courts. The courts of instance in the federal system are the United States District Courts. These are divided by statute into ninety-one districts, with each state comprising at least one district.94 The district courts, in turn, are grouped together into thirteen judicial circuits, each containing a United States Court of Appeals for that circuit.95 The work of these courts of appeals is mainly appellate, with review taken from the district courts located within the judicial circuit. All federal courts, both district96 and circuit,97 are bound under the principle of stare decisis to follow the decisions of the United States Supreme Court. The same rule of obedience applies to the District Courts, which are bound by the decisions of the court

Ingman, supra at pp. 406-407. Ingman believes that the Court of Appeal would be required to depart from any of its previous decisions which was found to be inconsistent with European Community law. 93 28 U.S. Code sect. 1333. 94 28 U.S. Code sects. 81-131. 95 28 U.S. Code sect. 41. 96 See In re Bernstein 81 F. Supp.2d 176 at p. 1818, 2000 AMC 760 at p. 767 (D. Mass. 1999): Where the Supreme Court has spoken to an issue, it is the duty of the lower federal courts to follow that analysis without regard to arguably changed conditions. Indeed, the First Circuit has very recently acknowledged the duty of the lower federal courts to follow the Supreme Court's directly applicable precedent, even if that precedent appears weakened by pronouncements in its subsequent decisions, and to leave to the [Supreme] Court the prerogative of overruling its own decisions. National Foreign Trade Council v. Natsios, 181 F.3d 38, 59 (1 Cir. 1999) (quoting Agostini v. Felton, 521 U.S. 203, 237 [1997]). 97 Red Star Barge Line, Inc. v. Nassau County Bridge Authority 683 F.2d 42 at p. 45, 1982 AMC 2588 at p. 2591 (2 Cir. 1982), re the century-old, obsolescent doctrine (see AMC headnote) that insurance proceeds paid to a shipowner entitled to limit liability are not available to the injured party must be followed until reexamined by the U.S. Supreme Court. See also Stewart v. Dutra Construction Co., Inc. 230 F.3d 462 at p. 467, 2001 AMC 1116 at p. 1121 (1 Cir. 2000): Prior circuit precedent will yield to a contrary decisions of the Supreme Court or to a statutory overruling, citing Williams v. Ashland Engineering Co. 45 F.3d 588 at p. 592 (1 Cir. 1995).

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of appeals of the circuit in which the district court is located.98 As recently stated by one district court judge in Owen-Illinois, Inc. v. Aetna Casualty and Surety Co.:99 The doctrine of stare decisis compels district courts to adhere to a decision of the Court of Appeals of their Circuit until such time as the Court of Appeals or the Supreme Court of the United States sees fit to overrule the decision. The picture becomes far less clear, however, when there is no binding precedent from that circuit and all that exists are district court decisions, because the district courts are not bound either by other district courts100 or by the courts of appeals from another circuit. Decisions not in the direct hierarchical chain are considered as having only persuasive authority.101 The result is that the circuits often develop the law along parallel or even conflicting lines.102 Whether or not there is a conflict between the circuits is often the determinative factor in obtaining review by the Supreme Court.103
See, for example, Guevara v. Cia Sud Americana de Vapores 1978 AMC 2000 at p. 2005(D. C.Z.): Until and unless, Congress or the Fifth Circuit considers the matter, this Court is of the opinion that it is bound to follow the precedent established in Sandoval [a Fifth Circuit decision]. 99 597 F. Supp. 1515 at p. 1520 (D. D.C. 1984). 100 See, for example, Fishman & Tobin, Inc. v. Tropical Shipping & Construction Co., Ltd. 240 F.3d 956 at p. 965, 2001 AMC 1663 at p. 1674 (11 Cir. 2001): Unlike circuit court panels where one panel will not overrule another, see Julius v. Johnson, 755 F.2d 1403, 1404 (11 Cir. 1985), district courts are not held to the same standard. While the decisions of their fellow judges are persuasive, they are not binding authority. See Aguirre v. United States, 956 F.2d 1166 (9 Cir. 1992) (unpublished);. As a result, the district court cannot be said to be bound by a decision of one of its brother or sister judges. 101 See 13 Moore's Federal Practice R. 0402[l], at p. 15. 102 A classic case of this kind of inter-circuit division in interpreting U.S. COGSA has developed as between the Ninth Circuit, on the one hand, and the Second, Fifth and Eleventh Circuits, on the other, in respect of the burden of proof in cases of cargo loss or damage caused by fire. In the Ninth Circuit, the defendant carrier, to be exonerated from liability for such fire loss under COGSA, must first prove that it exercised due diligence to make the ship seaworthy before and at the beginning of the voyage, in respect of the loss. See Sunkist Growers v. Adelaide Shipping Lines 603 F.2d 1327 at pp. 1335-1336, 1979 AMC 2787 at p. 2807 (9 Cir. 1979), cert. denied, 444 U.S. 1012, 1980 AMC 2102 (1980); Hasbro Industries, Inc. v. M.S. St. Constantine 705 F.2d 339 at p. 341, 1983 AMC 1841 at pp. 1842-1843 (9 Cir. 1983); Complaint of Damodar Bulk Carriers, Ltd. 903 F.2d 675 at p. 686, 1990 AMC 1544 at pp. 1560-1561 (9 Cir. 1990); Nissan Fire & Marine Ins. Co., Ltd. v. M/V Hyundai Explorer 93 F.3d 641 at pp. 645-646, 1996 AMC 2409 at p. 2413 (9 Cir. 1996). On the other hand, in the Second, Fifth and Eleventh Circuits, the carrier does need to make any such proof of due diligence before invoking the fire exception of COGSA, but needs only to prove that the loss or damage was caused by fire, after which the cargo claimant must try to prove that the fire resulted from the design or neglect, or the actual fault or privity, of the carrier or his servants or agents. See Ta Chi Navigation (Panama) Corp. S.A. 677 F.2d 225 at p. 228, 1982 AMC 1710 at p. 1713 (2 Cir. 1982); Westinghouse Electric Corp. v. M/V Leslie Lykes 734 F.2d 199, 1985 AMC 247 (5 Cir. 1984); Banana Services, Inc. v. M/V Tasman Star 68 F.23d 418 at p. 421, 1996 AMC 260 at p. 264 (11 Cir. 1995). See generally W. Tetley, Marine Cargo Claims, 3 Ed., 1988, Chap. 17: Fire. As a result of these divergent interpretations, a U.S. Supreme Court decision or remedial legislation will be required to clarify the legal principle at stake. See Terry Marquez, The Ninth Circuit Fails to Mend the Inter-Circuit Split Regarding the Burden of Proof in Fire Statute Cases: Nissan Fire & Marine Insurance Co. v. M/V Hyundai Explorer (1997) 21 Tul. Mar. L.J. 629 at pp. 640-641. 103 Rule 10 of the United States Supreme Court, which governs review on certiorari, reads in part as follows: 1. A review on writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling
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c) Canada Each of the ten provinces and three territories in Canada has its own Court of Appeal. Judicial attitudes respecting the doctrine of the stare decisis vary from one court to another. The Ontario Court of Appeal, from the standpoint of strict adherence to the doctrine of stare decisis, has been characterized as the most conservative. In general, the appellate courts of the common-law provinces and territories are bound by the decisions of the Supreme Court of Canada,104 and ordinarily follow their own previous decisions, although they may overrule their past judgments where serious reasons warrant doing so.105 They are not bound by the decisions of other Canadian common-law appellate courts, such decisions being purely persuasive authority.106 The decisions of the courts of appeal in each common-law province or territory bind the courts inferior to them within that same jurisdiction.107 The latter courts (i.e. provincial superior and inferior courts) usually follow the decisions of courts of co-ordinate jurisdiction, but may depart from them where there are strong reasons for doing so (e.g. where the decisions of the other courts are inconsistent or were rendered per incuriam).108 On the other extreme, the Qubec Court of Appeal (Qubec is a mixed jurisdiction) has never considered itself bound by previous decisions.109 Nevertheless,
nor fully measuring the Court's discretion, indicate the character of the reasons the Court considers: (a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court's supervisory power; 104 R. v. Wolf [1975] 2 S.C.R. 107, (1975) 47 D.L.R.(3d) 741. 105 See, for example, Nova, An Alberta Corp. v. Guelph Engingeering Co. (1984) 30 Alta. L.R.(2d) 183, (1984) 5 D.L.R. (4th) 755 (Alta. C.A.); Green v. A.-G. for British Columbia (1986) 29 C.R.R. 35 (B.C. S.C.), referred to in R.V.P. Enterprises Ltd. v. British Columbia (Minister of Consumer and Corporate Affairs) [1988] 4 W.W.R. 726, (1988) 25 B.C.L.R.(2d) 219, (1988) 50 D.L.R.(4th) 394 (B.C. C.A.), leave to appeal denied, [1988] 6 W.W.R. lxix (note), (1988) 28 B.C.L.R.(2d) xxxi (note), (1988) 50 D.L.R.(4th) vii (note) (Supr. Ct. Can.). See generally Gerald L. Gall, Canadian Legal System, 4 Ed., Carswell, Toronto, 1995 at pp. 351-353. 106 R. v. Wolf [1975] 2 S.C.R. 107, (1975) 47 D.L.R.(3d) 741; R v. Tait [2001] O.J. No. 2948 at para. 81; Gall, op. cit. at pp. 355-356. 107 R. v. Northern Electric Co. Ltd. [1955] O.R. 431, [1955] 3 D.L.R. 449 (Ont. High C.). Lower provincial/territorial courts are not bound, however, by decisions of courts of co-ordinate jurisdiction in other provinces or territories, or by the decisions of the appellate courts of other provinces or territories. See R v. Constable Transport Ltd. [1967] 1 O.R. 357, (1966) 60 D.L.R.(2d) 577 (Ont. County C.); R v. Beaney [1969] 2 O.R. 71, (1969) 4 D.L.R.(3d) 369 (Ont. County Ct.); Gall, op. cit. at pp. 357-358. 108 Horne v. Horne Estate (1986) 54 O.R.(2d) 510 (Ont. High C.), affd on other grounds, (1987) 60 O.R.(2d) 1, (1987) 37 D.L.R.(4th) 216 (Ont. C.A.); Re Ellwood Robinson Ltd. and Ohio Dev. Co. (1975) 7 O.R.(2d) 556 (Ont. Dist. C.); Holmes v. Jarrett [1993] 1 I.L.R. 1-2949 (Ont. Ct. Gen. Div.); R. v. Koziolek (1999) 40 M.V.R. (3d) 304 (Ont Ct. Gen. Div.); Gall, op. cit. at pp. 356-357. 109 Reid v. McFarlane (1893) 2 C.B.R. 130; Migner v. St. Lawrence Fire Insurance Co. (1901) 10 C.B.R. 122; Callpro Canada Inc. v. Prima Tlmatique Inc. (2001) 16 B.L.R. (3d) 202 at p. 216 (Ont. Supr. Ct.). See Nicole Bernier, Lautorit du prcdent judiciaire la Cour dappel du Qubec (1971) 6 Revue

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Qubecs status as a mixed jurisdiction, in which the civilian private law co-exists with public law of common-law inspiration (notably in the constitutional, criminal and administrative fields), has resulted in jurisprudence (i.e. case-law) having a higher profile in practice in the Provinces legal system than it would in a pure civil law jurisdiction. Eliadis has observed:110 Quebec judges tend now to write lengthy judgments setting out facts, reasons and conclusions in much the same style as one sees in Common law jurisdictions. Contrary to the traditional short, non-discursive form of judgments in Civil law systems which give no insight into judicial reasoning, the current trend lends itself to the development of legal principles and their application to fact patters that are not necessarily on all fours with those in a given precedent. Inevitably, these tensions create serious question as to the proper place and role of decided cases. In practice, however, the issue is largely moot. Cases are cited before the Quebec courts in much the same manner and with the same deference for appellate decisions as one might find in a Canadian court in a Common law jurisdiction. Even if the theory may vary, lower courts have adopted a de facto principle of stare decisis. The bulk of litigation on maritime law matters is conducted in Canada in the Federal Court and the Federal Court of Appeal. These Courts, as established by the federal government under sect. 101 of the Constitution Act, 1867,111 for the better administration of the laws of Canada, exercise various heads of jurisdiction defined by the Federal Court Act.112 In exercising that purely statutory jurisdiction, they are bound only by decisions of the Supreme Court of Canada, and not by decisions of any other court in Canada (e.g. any provincial or territorial court of appeal or any court of lesser authority).113 The Federal Court of Appeal, as an intermediate appellate court, ordinarily follows its own previous decisions, but is not bound to do so, where it finds that any such decision is manifestly incorrect,114 following in this matter the principles laid down for the English Court of Appeal in the United Kingdom in Young v. Bristol Aeroplane.115
Juridique Thmis 535. For a general survey on the doctrine of stare decisis in Canadian provincial appellate courts, see: J.D. Murphy and R. Rueter, Stare Decisis in Commonwealth Appellate Courts, Buttterworths, Toronto, 1981, at pp. 24-55. 110 F. Pearl Eliadis, The Legal System in Quebec, being chap. 8 of Gerald L. Gall, op. cit., 209-229 at p. 221. 111 R.S.C. 1985, App. II, no. 5 (formerly the British North America Act, 1867, U.K., 30 & 31 Vict., c. 3, but renamed by the Canada Act 1982, U.K. 1982, c. 11). 112 R.S.C. 1985, c. F-7. Under the Courts Administration Service Act, S.C. 2002, c. 8, in force 2 July 2003, the Trial Division and the Appeal Division of the Federal Court of Canada became two separate courts, respectively called the Federal Court and the Federal Court of Appeal. 113 Mitchell v. M.N.R. [1993] 3 F.C. 276 at p. 294, (1993) 64 F.T.R. 17 at p. 28 (Fed. C. Can.). 114 See, for example, Armstrong Cork Canada Ltd. v. Domco Industrial Ltd. [1981] 2 F.C. 510 at p. 517 (Fed. C.A.), leave to appeal dismissed, [1982] 1 S.C.R. 907; The Queen v. Pollack [1984] C.T.C. 353 (Fed. C.A.); Widmont v. Minister of Employment & Immigration [1984] 2 F.C. 274 at p. 281, (1984) 56 N.R. 198

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The Federal Court is bound only by decisions of the Supreme Court and those of the Federal Court of Appeal.116 Any decision of the Court of Appeal is binding on the Federal Court, even while the appeal from the Court of Appeals judgment is pending before the Supreme Court of Canada.117 Both Courts normally respects their own precedents, unless they are shown to be manifestly incorrect or likely to result in severe injustice.118 VI. Jurisdiction and Authority

Before the application of stare decisis to the Judicial Committee of the Privy Council is considered, it is appropriate to study the jurisdiction of the Committee. 1) Jurisdiction

The jurisdiction of the Judicial Committee of the Privy Council arose out of the prerogative right of the Sovereign to entertain appeals from the courts of her dominions.119 In Nadan v. The King,120 Viscount Cave L.C. wrote on behalf of the Committee that: The practice of invoking the exercise of the royal prerogative by way of appeal from any Court in His Majesty's Dominions has long obtained throughout the British Empire. In its origin such an application may have been no more than a petitory appeal to the Sovereign as the fountain of justice for protection against an unjust administration of the law; but if so, the practice has long since ripened into a privilege belonging to every subject of the King. In the United Kingdom the appeal was made to the King in Parliament, and was the foundation of the appellate jurisdiction of the House of Lords; but in His Majesty's Dominions
at p. 201 (Fed. C.A.); Apotex Inc. v. Janssen Pharmaceutical (1997) 208 N.R. 395 (Fed. C.A.); Canada v. Hollnger Inc. [2000] 1 F.C. 227, (2000) 246 N.R. 344 (Fed. C.A.) (Judicial comity and the need for certainty in the law require that precedent be followed unless there is some overriding error in the authorities.) 115 [1944] 2 K.B. 718 (C.A.). See discussion of these principles in sect. V(4)(a), supra. 116 Ibid. 117 Strachan v. Canada (Minister of Citizenship & Immigration) (1998) 157 F.T.R. 267 at p. 269 (Fed. C. Can.). 118 Glaxo Group Ltd. v. Canada (Minister of National Health and Welfare) (1996) 64 C.P.R. (3d) 65 (Fed. C. Can.); Ahani v. Canada (Minister of Citizenship & Immigration) (1999) 170 F.T.R. 153 (Fed. C. Can.); Ziyadah v. Canada (Minister of Citizenship & Immigration) [1999] 4 F.C. 152, (1999) 169 F.T.R. 282 (Fed. C. Can.). 119 Halsburys Laws of England, 4 Ed. Reissue, vol. 10, Butterworths, London, 2002, para. 403 at p. 183. These appeals came to be regulated by a series of Imperial statutes, the most important being the Judicial Committee Act, 1833 (3 & 4 Will. 4, c. 41). 120 [1926] A.C. 482 at p. 491 (P.C.).

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beyond the seas the method of appeal to the King in Council has prevailed and is open to all the Kings subjects in those Dominions. Technically, therefore, before 1931 (when the Statute of Westminster, 1931121 removed the last restrictions on the legislative powers of the Dominions122) no colony subject to the British Crown would have denied a citizen, as a subject of Her Majesty, his right to claim redress from the throne.123 At the turn of the century, one-fourth of the worlds population was subject to the Privy Councils jurisdiction.124 Today, a right of appeal to the Committee exists only in relation to the following:125 Akrotiri and Dhekelia (U.K. Sovereign Base Areas in Cyprus), Anguilla, Antigua and Barbuda, the Bahamas, Barbados, Belize, Bermuda, British Antarctic Territory, British Indian Ocean Territory, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Grenada, Jamaica, Mauritius, Montserrat, St. Christopher (St. Kitts) and Nevis, St. Helena, St. Lucia, St. Vincent and the Grenadines, Trinidad and Tobago, Turks and Caicos Islands and Tuvalu.126 There is a similar right of appeal in respect of the Channel Islands and the Isle of Man.127 The Caribbean Community is taking steps to establish a final court of appeal (the Caribbean Court of Justice), which would replace the Judicial Committee of the Privy Council as the final court of appeal for a number of the above-mentioned Caribbean States and some others.128
An Act to give effect to certain resolutions passed by Imperial Conferences held in the years 1926 and 1930 (22 Geo. 5, c. 4.). 122 Ibid., sect. 1: In this act the expression dominion means any of the following Dominions, that is to say, the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, the Union of South Africa, the Irish Free State and Newfoundland. 123 From the memorandum addressed by Mr. H. Reeve, Registrar of the Privy Council, to the Under Secretary of state for the Colonies, dated 20th July 1871, cited in Frank Safford and George Wheeler, The Practice of the Privy Council in Judicial Matters, etc., Sweet & Maxwell, London, 1901, at p. xi. Hence an attempt by the Dominion of Canada, in 1888, to limit appeals to the Privy Council in criminal matters was held to be invalid: Nadan v. The King [1926] A.C. 482 (P.C.). 124 Safford & Wheeler, op. cit., at p. vii. 125 Note that New Zealand, by it Supreme Court Act 2003, No. 53 of 2003, in force 1 January 2004, established a five-judge New Zealand Supreme Court as the final court of appeal for all New Zealand cases (civil and criminal), thus replacing the Judicial Committee of the Privy Council. . See Noel Cox, The abolition or retention of the Privy Council as the final Court of Appeal for New Zealand: Conflict between national identity and legal pragmatism (2002) 20(2) New Zealand Universities Law Review 220-238, also to be found at http://www.geocities.com/noelcox/Privy_Council_NZULR.htm 126 Among the countries and territories from which the Judicial Committee of the Privy Council is no longer the final court of appeal in civil matters, are The Gambia, Hong Kong, Malaysia, New Zealand, Seychelles, Singapore, and the West Indies Associated States. 127 Halsburys Laws of England, op. cit., at para. 403, pp. 184-185, and yearly cumulative supplements. 128 The Agreement Establishing the Caribbean Court of Justice, signed at Barbados, February 14, 2001 (see http://www.caricom.org/archives/ccj-agreement.pdf), requiring ratification by only three Contracting States, would permit the Member-States of the Caribbean Community (CARICOM), and other Caribbean countries invited by the Conference of Heads of Government of the Member-States of the Caribbean Community, to accept the jurisdiction of the proposed Caribbean Court of Justice (CCJ) as their final court of appeal. The countries concerned are: Antigua and Barbuda, Barbados, Belize, Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines,
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2)

Abolition of the right to appeal by Commonwealth Members

The right of appeal has been (or may eventually be) terminated by a number of independent members of the Commonwealth, either on their becoming republics or by specific legislation. a) On becoming republics A classic example is India. On August 15, 1947, the United Kingdom government ceased to have responsibility for any of the territories in British India. The Constitution of India came fully into force on January 26, 1950. The Indian statute abolishing all appeals to the Privy Council was passed in 1949.129 One should note, however, that a few former colonies, on becoming independent republics, have nevertheless retained a right of appeal to the Privy Council, e.g. Dominica,130 Kiribati,131 Mauritius132 and Trinidad and Tobago,133 while a very limited right of appeal survives in cases from Brunei.134

Suriname and Trinidad and Tobago. Note that Haiti and Suriname are civilian jurisdictions. The inauguration of the CCJ is expected to occur in 2004. See Press Release 37/2003 of the Secretariat of the Caribbean Community, dated February 18, 2003 at http://www.caricom.org/, indicating that as of that date, 13 countries had signed the Agreement. See generally, Hugh Rawlins, Caribbean Court of Justice: The History and Analysis of the Debate, Preparatory Committee on the Caribbean Court of Justice, CARICOM Secretariat, Georgetown, 2000; Rhea P. Hamilton, A Guide to Researching the Caribbean Court of Justice (2002) 27 Brooklyn J. Intl L. 531-542. 129 Abolition of Privy Council jurisdiction Act 1949 (Const. Assy. Art. no. v of 1949 (India)). An early and often overlooked example of severance of ties with the Privy Council by a jurisdiction upon becoming a republic is that of the United States. Prior to the American Revolution the Judicial Committee of the Privy Council was not only the final court of appeal for the Thirteen Colonies, it also had the power of annulling the enactments of the colonial legislatures. See generally Lawrence M. Friedman, A History of American Law, 2 Ed., Simon & Shuster, New York, 1985, and Julius Goebel, Jr., History of the Supreme Court of the United States, vol. I, Macmillan, New York, 1971, at p. 35 et seq. See also Joseph H. Smith, Appeals to the Privy Council from the American Plantations, Columbia University Press, New York, 1950 (1965 reprint by Octagon Books, New York); and Elmer Beecher Russell, The Review of American Colonial Legislation by the King in Council (1915: 1976 reprint by Octagon Books, New York). 130 Commonwealth of Dominica Constitution Order 1978, S.I. 1978 No. 1027, Sch. 1, sect. 106, Sch. 2, para. 9; and the Dominica Modification of Enactments Order 1978, S.I. 1978 No. 1030, art. 4. 131 Kiribati Act 1979, U.K. 1979, c. 27, sect. 6, as amended by the Statute Law (Repeals) Act 1986, U.K. 1986, c. 12. 132 Mauritius Republic Act 1992, U.K. 1992, c. 45, sect. 2; Mauritius Appeals to Judicial Committee Order 1992, S.I. 1992 No. 1716. 133 Trinidad and Tobago Republic Act 1976, U.K. 1976, c. 54, sect. 2, as amended by the Statute Law (Repeals) Act 1986; The Trinidad and Tobago Appeals to Judicial Committee Order 1976, S.I. 1976 No. 1915. 134 In 1989, the U.K. and Brunei governments agreed that certain appeals from the Supreme Court of Brunei would continue to be heard by the Privy Council, but that the Judicial Committee would tender its advice on such appeals to the Sultan of Brunei, rather than to the Queen. See Brunei (Appeals) Act 1989, U.K. 1989, c. 36, and the Brunei (Appeals) Order 1989, S.I. 1989, No. 2396. The right of appeal in criminal cases was subsequently eliminated, however, and was retained in civil cases only where the

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b) By specific legislation The right to appeal to the Privy Council may be completely abrogated by legislation (as with Canada in 1949135) or seriously limited (as with Australia until recently136). Where the right of appeal is terminated, it is customary for the Committee to retain jurisdiction in the case of pending appeals. Canada's Supreme Court Act, 1949,137 for example, which made all judgments by the Supreme Court final, specifically provided at sect. 7 that any judicial proceeding commenced prior to the coming into force of the Act could be appealed to the Privy Council. The last Canadian appeal was therefore not determined until 1959.138

parties, before the hearing of their appeal by the Supreme Court of Brunei, agree in writing to be bound by an appeal to the Sultan. See Brunei (Appeals) (Amendment) Order 1998, S.I. 1998, No. 255. 135 Supreme Court Act, 1949 (13 Geo. 6, c. 37). As early as 1888, the Canadian Parliament enacted an amendment to the Criminal Code providing that the judgments of the Supreme Court of Canada should be final in all criminal matters. Thirty-eight years later, in Nadan v. The King [1926] A.C. 482 (P.C.), the Privy Council held the amendment to be invalid. In 1933, however, shortly after the Statute of Westminster had conferred on the dominions the capacity to repeal or amend Imperial statutes, Canada again enacted legislation abolishing the right of appeal in criminal cases. This new act was upheld by the Privy Council in British Coal Corp. v. The King [1935] A.C. 500 (P.C.). In 1939, the Canadian government introduced a bill to abolish the remaining appeals to the Privy Council. The bill became law only 10 years later after the Privy Council, in A.-G. Ont. v. A.-G. Can. [1947] A.C. 127 (P.C.), upheld the constitutional validity of the scheme. See Peter W. Hogg, Constitutional Law of Canada, 4 Ed., Carswell, Toronto, 1997, para. 8.2 at pp. 212-214; Mark R. MacGuigan, Precedents and Policy in the Supreme Court (1967) 45 Can. Bar Rev. 627 at pp. 628-638; W.S. Livingston, Abolition of Appeals from Canadian Courts to the Privy Council (1950-51) 64 Harv. L. Rev. 104; James G. Snell & Frederick Vaughan, The Supreme Court of Canada: History of the Institution, University of Toronto Press, Toronto, 1985, at pp. 182-195. 136 By virtue of the Privy Council (Limitation of Appeals) Act 1968 (Cth.), No. 36 of 1968), applications to the Privy Council for leave to appeal from the High Court became impossible in all federal matters. By the Privy Council (Appeals from the High Court) Act 1975 (Cth.), No. 33 of 1975, such applications for leave to appeal could no longer be made from any decision of the High Court or from any decision of the Supreme Court of a State exercising federal jurisdiction. These Acts were subject to sect. 74 of the Australian Constitution (Cth.) which provides that No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States ... unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council. The High Court has only once granted such a certificate, in Colonial Sugar Refining Co. v. Commonwealth (1912) 15 C.L.R. 182. The High Court, in Kirmani v. Capt. Cook Cruises (1984-85) 58 A.L.R. 108 at p. 109, (1985) 59 A.L.J.R. 480 at p. 481 (High C. of Aust.), in refusing to issue a certificate under sect. 74, expressed the view that: Although the jurisdiction to grant a certificate stands in the Constitution, such limited purpose as it had has long since been spent. The march of events and the legislative changes that have been effected - to say nothing of national sentiment - have made the jurisdiction obsolete. Sect. 74 is now a dead letter. On March 3, 1986, with the coming into force of the Australia Act 1986 (Cth.), No. 142 of 1985; U.K., 1986, c. 25, all remaining appeals to the Privy Council were terminated, subject, however, to the continuation of appeals instituted before the commencement of the Act (see sect. 11). See generally T. Blackshield & G. Williams, Australian Constitutional Law and Theory. Commentary and Materials, 3 Ed., The Federation Press, Sydney, 2002 at pp 568-572. 137 13 Geo. 6, c. 37. 138 Ponoka-Calmar Oils v. Wakefield [1960] A.C. 18 (P.C.).

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Finally, one should note that independence per se of a colony or dominion, which retains the Queen as its head of state, is not enough to terminate appeals to the Privy Council. A law by the newly independent Parliament must be passed to that effect.139 3) Authority of the Privy Council a) Never binding on itself A judgment of the Privy Council is in the form of an advice to the sovereign. The decision is then transformed into an Order in Council made by the Sovereign in Council, which is then transmitted to the governmental authority responsible for the administration of justice in the territory concerned.140 Because of the long-held fiction that the judges were simply giving advice to the sovereign141 they (unlike the House of Lords prior to the Lord Chancellors Statement on Precedent, 26 July 1966)142 were never bound by their own decisions. As Lord Diplock stated in Baker v. The Queen143 (an appeal from Jamaica): The Judicial Committee of the Privy Council is not strictly bound to follow the ratio decidendi of its previous decisions. It has always claimed the power to overrule its previous decisions even where they are fully reasoned, although in the interests of certainty of the law this is a power that it will exercise only in exceptional circumstances. b) Before abolition i) Binding upon the jurisdiction from where the appeal arose Although the Privy Council may only recommend to Her Majesty in Council, the Order in Council which gives effect to the Committees report is a judicial order - it is in everything but form the equivalent of a legal judgment.144 It is an order or decree ... on appeal (sect. 21 of the Judicial Committee Act, 1833)145 and is mandatory in its directions to those whom it affects by virtue of the provisions of sect. 21. From this it follows that in as much as a court within Her Majestys dominions accepts the doctrine of precedent (or stare decisis), under which the decisions of a court
Ibralebbe v. The Queen [1964] A.C. 900 (P.C.). On appeal from the Supreme Court of Ceylon. Louis Blom-Cooper & Gavin Drewry, Final Appeal: A Study of the House of Lords in its Judicial Capacity, Clarendon Press, Oxford, 1972, at p. 110. 141 This fiction, according to Messrs. Blom-Cooper & Drewry, op. cit., at p. 110, was abandoned when dissenting judgments were allowed for the first time by the Judicial Committee (Dissenting Opinion) Order in Council 1966. 142 Practice Statement Judicial Precedent) [1966] 1 W.L.R. 1234, [1966] 3 All E.R. 77 (H.L.). 143 [1975] A.C. 774 at pp. 787-788. See also Lord Wright, Precedents (1942-44) 8 Cambridge L.J. 118 at p. 136. 144 lbralebbe v. The Queen [1964] A.C. 900 at p. 921 (P.C.). 145 3 & 4 Will. 4, c. 41.
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are binding on courts lower in the judicial hierarchy, a decision by the Privy Council is binding upon it. Therefore, before the abolition of Canadian appeals to the Privy Council, there was never any doubt that all Canadian courts, including the Supreme Court of Canada, were bound to follow the decisions of the Committee.146 This represents the formal position in Australia as well.147 It is open to argument, however, whether the High Court has always followed the rule faithfully.148 One should also note that the rule in Robins v. National Trust Co.149 made the decisions of the House of Lords binding, on points of English law, on the courts of the

P.W. Hogg, Constitutional Law of Canada, 4 Ed., Carswell, Toronto, 1997, para. 8.7 at p. 229; Mark R. MacGuigan, Precedent and Policy in the Supreme Court (1967), 45 Can. Bar Rev. 627 at p. 639. 147 Bruce v. Waldron [1963] V.R. 3 at p. 7 (Sup. Ct. of Vict. 1962): By the established rules of judicial precedent, decisions of the Privy Council, as the ultimate court of appeal in the hierarchy to which our courts belong, have a direct binding authority in our courts which does not attach to the decisions of any other judicial tribunal.; Christie v. Ford (1957) 2 F.L.R. 202 at p. 208 (Sup. Ct. of N.T. 1957): In the Northern Territory the decisions of the Privy Council are absolutely binding. 148 See, H.E. Renfree, The Federal Judicial System of Australia, Legal Books, Sydney, 1984, at p. 138; L.V. Prott, Refusing to Follow Precedents: Rebellious Lower Courts and the Fading Comity Doctrine (1977), 51 Australian L.J. 288; R.S. Geddes, The Authority of Privy Council Decisions in Australian Courts (1978) 9 Fed. L.R. 427. 149 [1927] A.C. 515 at p. 519, [1927] 2 D.L.R. 97 at p. 100 (P.C.) (Viscount Dunedin delivered the judgment of the Committee): When an appellate Court in a colony which is regulated by English law differs from an appellate court in England it is not right to assume that the colonial Court is wrong. It is otherwise if the authority in England is that of the House of Lords. That is the supreme tribunal to settle English law and that being settled, the colonial Court which is bound by English law is bound to follow it. See also Hogg, op. cit., para. 8.7 at p. 229, note 102, and Zelman Cowen, The binding effect of English decisions upon Australian courts (1944) 60 L. Q. R. 378 et seq. (One should note that before 1927, when the Privy Council in the Robins case held that colonial appellate courts were not bound by the English Court of Appeal, it had been the rule, on the authority of Trimble v. Hill (1879) 5 App. Case 349 (P.C.), that it was the duty of all colonial courts to follow the decisions of the Court of Appeal of England. (See generally Mark R. MacGuigan, Precedent and Policy in the Supreme Court (1967) 45 Can. Bar Rev. 626 at p. 638 et seq.). Today, ex-colonial courts, such as those in Australia or in Canada, are no longer bound by decisions from the House of Lords. As was acknowledged by Gibbs J. in Viro v. R. (1978) 18 A.L.R. 257 at p. 282, (1978) 141 C.L.R. 88 at p. 121 (High C. of Aust.): We no longer treat ourselves as bound by the decisions of the House of Lords, but we nevertheless continue to recognize their peculiarly high persuasive value: Skelton v. Collins (1966) 115 C.L.R. 94 at 104; [1966] A.L.R. 449. See Snell & Vaughan, The Supreme Court of Canada: History of the Institution, University of Toronto Press, Toronto, 1985, at p. 239: The Supreme Court of Canada justices continue to grant special deference to the senior appellate tribunal in the common-law world. It is not clear when the decisions of the House of Lords passed from the area of the binding, to merely persuasive, authority. It is probably a phenomenon closely linked with the abolition of appeals to the Privy Council: e.g. in two Australian cases decided prior to the Privy Council (Appeals from the High Court) Act 1975 (Bruce v. Waldron [1963] V.R. 3 (Sup. Ct. of Vict. 1962) and Christie v. Ford [1957] 2 F.L.R. 202 (Sup. Ct. N.T. 1957)), the courts acknowledged the fact that decisions of the House of Lords were binding upon them. In the 1978 case of Viro v. R. (1978) 18 A.L.R. 257, (1978) 141 C.L.R. 88, however, the High Court came to the opposite conclusion. For a detailed discussion of this particular issue as to Canada, see: Andrew Joanes, Stare decisis in the Supreme Court of Canada (1958) 36 Can. Bar Rev. 174 at p. 195 et seq.

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various dominions and colonies of the British Empire. However, where there is a direct conflict between a decision of the Privy Council and a decision of the House of Lords, colonial and dominion courts are required by the established rules of judicial precedent to follow the decision of the Privy Council.150 ii) Binding upon all other jurisdictions from which an appeal to the Privy Council lies Decisions of the Privy Council are in theory binding upon all courts within its jurisdiction and not just courts of the territory whence the particular appeal came.151 Thus, Gibbs J. declared, in Viro v. R.,152 that: ... once the Privy Council decided a question of general law, without indicating that it was laying down a principle peculiar to the dominion, colony or other State from which the appeal was brought, its decisions were binding upon all courts from which an appeal lay to the Privy Council. That seems to have been held by the Privy Council itself in Fatuma Binti Mohamed Bin Salim Bakhshuwen v. Mohamed Bin Salim Bakhshuwen, [1952] A.C. 1 at 14 and by this court in Morris v. English, Scottish and Australian Bank Ltd. (1957), 97 C.L.R. 624. Those authorities were discussed in Mayer v. Coe (1968), 88 W.N. (Pt 1) (NSW) 549 at 555 and Ratcliffe v. Watters (1969), 89 WN (Pt 1) (NSW) 497 at 503-4, and it was held that the Supreme Court of New South Wales should follow a decision of the Privy Council given on appeal from an earlier decision of this court. c) After abolition i) Status of previously binding decisions The Privy Council was never bound, as we have already seen, by its prior decisions. After its accession to final appellate status, the Supreme Court of Canada felt,

In re Rayner [1948] N.Z.L.R. 455 at p. 501 (N.Z. C.A. 1947): ... the Court of Appeal in New Zealand should follow the judgments of that House [the House of Lords] unless there is a judgment of the Privy Council to the contrary, which, in the present relation, there is not. See also Christie v. Ford [1957] 2 F.L.R. 202 at p. 208 (Sup. Ct. N.T. 1957) and Bruce v. Waldron [1963] V.R. 3 at p. 7 (Sup. Ct. of Vict. 1962). 151 Blom-Cooper and Drewry, op. cit., at p. 77. In Negro v. Pietro's Bread Co. [1933] 1 D.L.R. 491 at pp. 494-496, the Ontario Court of Appeal refused to follow Victorian Rys. Com'rs v. Coultas 13 App. Cas. 222, a Privy Council judgment in an Australian appeal, on the basis that the Coultas case, so adversely criticized, stood alone and was out of harmony with the whole trend of English cases. Middleton, J.A. who delivered the judgment for the Ontario Court of Appeal acknowledged the fact that he was very bold in reaching that conclusion. Commenting on the Negro case, Gibbs J., in Viro v. R. (1978) 18 A.L.R. 257 at p. 281, (1978) 141 C.L.R. 88 at p. 118 (High C. of Aust.), said: At that time the notion that a decision of the Privy Council on appeal from Australia was not binding in Canada was heretical. 152 Ibid., A.L.R. at p. 281, C.L.R. at p. 119. See also the comments of Mason J. at p. 295. An important case on the subject, not cited by the High Court, is Robins v. National Trust Co. [1927] A.C. 515 at p. 517, [1927] 2 D.L.R. 97 at pp. 98-99 (P.C.).

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because it had now all the power of the Privy Council153 that it should equally not be bound to follow the prior decisions of the Committee.154 Thus in 1978, in the case of Re Agricultural Products Marketing Act,155 the Supreme Court refused to follow a Privy Council precedent, as it did again in 1987 in Re Bill 30 (Ont. Separate School Funding).156 said:157 The rule is the same in Australia. Barwick C.J. speaking for the High Court

I am of opinion that this court is no longer bound by decisions of the Privy Council whether or not they are given before or after the date when the Privy Council (Appeals from the High Court) Act 1975 became effective. ii) Persuasive value of Privy Council decisions from other jurisdictions Once the right to appeal to the Privy Council has been terminated in a country, it is obvious that the judgments of the Committee arising out of decisions rendered on appeals from other jurisdictions, will not be binding on the courts of the country where the right of appeal no longer exists. While no longer binding, the decisions of the Privy Council will nonetheless still be regarded as highly persuasive158 and treated, as in the case of decisions of the House of Lords, with the respect properly due to tribunals of that calibre.159 VII. Particular Principles of Interpretation of the Rules

Leaving aside the standard rules of interpretation of statutes, the following are eleven general principles of construction applicable to the Hague and Hague/Visby Rules as gleaned from judgments. 1)
153

Actual wording - rather than previous law

Reference re The Farm Products Marketing Act of Ontario [1957] S.C.R. 198 at p. 212 (per Rand J.): The powers of this court in the exercise of its jurisdiction are no less in scope than those formerly exercised in relation to Canada by the Judicial Committee. 154 Hogg, op. cit., para. 8.7 at p. 230. 155 [1978] 2 S.C.R. 1198 at pp. 1234 and 1291. See Hogg, op. cit., para. 8.7 at p. 230, note 105. And J. David Murphy and R. Rueter, Stare Decisis in Commonwealth Appellate Courts, Butterworths, Toronto, 1981, at pp. 23-24. 156 [1987] 1 S.C.R. 1148 at pp. 1190-1196; Hogg, op. cit., para. 8.7 at p. 230. 157 Viro v. R. (1978) 18 A.L.R. 257 at p. 260, (1978) 141 C.L.R. 88 at p. 93 (High C. of Aust.). An identical conclusion was reached in South Africa in Fellner v. Minister of the Interior [1954] 4 S.A.L.R. 523 at p. 530, where the Chief Justice of the Appellate Division of the Supreme Court said: At one time the Privy Council was our final court. It was not bound by its own decisions ... And now, the Appellate Division, being the final Court of Appeal in respect of appeals from courts in the Union, has the power which the Privy Council had, of departing from an erroneous decision of the Privy Council. 158 Viro v. R. (1978) 18 A.L.R. 257 at p. 282, (1978) 141 C.L.R. 88 at p. 121 (High C. of Aust.). 159 Ibid., A.L.R.at p. 325, C.L.R. at p. 174.

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The first principle of construction is that the actual wording of the Rules should be of paramount importance, while the use of previous law, i.e. statutes and judgments, should be limited and relied upon only with great circumspection.160 This rule appears in Stag Line Ltd. v. Foscolo, Mango & Co.,161 where Lord Atkin, after referring to the well-known words of Lord Herschell in the Bank of England v. Vagliano Brothers,162 stressed the importance for the Courts to consider ... only the words used without any predilection for the former law ....163 The United States Supreme Court has held that:164 Our interpretation must begin, as always, with the text of the Conventions. In the specific context of international law on the carriage of goods by sea, the House of Lords has held:165 One is therefore remitted to the language of the relevant parts of the Hague Rules as the authoritative guide to the intention of the framers of the Hague Rules. 2) International rather than domestic construction

The second principle of construction of the Rules is that, since they are an international agreement reached to encourage uniformity in practices relating to the carriage of goods on the oceans and waterways of the world, they should be construed so as to be internationally acceptable.

See Transworld Oil (USA) Inc. v. Minos Compania Naviera (The Leni) [1992] 2 Lloyds Rep. 48 at p. 53: I would have thought it right to have regard to the manner in which art.III, r.6 is formulated. See also Great China Metal Industries Co. Ltd. v. Malaysian International Shipping Corp. Berhad (The Bunga Seroja) (1998) 158 A.L.R. 1 at p. 19, [1999] 1 Lloyds Rep. 512 at p. 523, 1999 AMC 429 at p. 450 (High C. of Aust. per McHugh, J.): Primacy must be given, however, to the natural meaning of the words in their context,. 161 [1932] A.C. 328, (1931) 41 Ll. L. Rep. 165 (H.L.). 162 [1891] A.C. 107 at pp. 144-145. See sect. IV of this article, supra. 163 Supra, [1932] A.C. at p. 343; (1931) 41 Ll. L. Rep. at p. 171. See also Phoenix Marine Inc. v. China Ocean Shipping Co. [1999] 1 Lloyds Rep. 682 at p. 686, where Moore-Bick J. cited the similar rule of art. 9 of Panamas Civil Code: (translation): When the sense of a rule of law is clear its literal text cannot be disregarded with the pretext to consult its spirit. However, for the interpretation of an obscure expression of Law, the interpreter may refer to the intent or spirit that can be consulted through the Law or its history clearly manifested within the Law or in the genuine history of its creation. 164 See Itel Containers International Corp. v. Joe Huddleston, Commissioner of Revenue of Tennessee 113 S.Ct. 1095 at p. 1099, 1993 AMC 2318 at p. 2321 (1993). See also Griffin v. Oceanic Contractors, Inc. 458 U.S. 564 at p. 571 (1982): There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. See also Air France v. Saks 470 U.S. 392 at pp. 396-397 (1985): The analysis must begin, however, with the text of the treaty and the context in which the written words are used. The plain meaning was the first approach used by the Second Circuit in interpreting COGSA, sect. 4(6) (46 U.S.C. Appx. 1304(6)) in Senator Linie GmbH & Co. KG v. Ssunway Line, Inc. 291 F.3d 145 at pp. 154-158, 2002 AMC 1217 at pp. 1226-12312 (2 Cir. 2002). 165 See Effort Shipping Co Ltd. v. Linden Management SA (The Giannis N. K.) [1998] A.C. 605 at p. 622, [1998] 1 Lloyds Rep. 337 at p. 347, 1998 AMC 1050 at p. 1065 (H.L. per Lord Steyn).

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For example, Lord Atkin in Stag Line Ltd. v. Foscolo, Mango & Co.166 said: It will be remembered that the Act only applies to contracts of carriage of goods outwards from ports of the United Kingdom: and the Rules will often have to be interpreted in the courts of the foreign consignees. For the purpose of uniformity it is, therefore, important that the Courts should apply themselves to the consideration only of the words used without any predilection for the former law, always preserving the right to say that words used in the English language which have already in the particular context received judicial interpretation may be presumed to be used in the sense already judicially imputed to them. The principle was reiterated by Lord Macmillan in the same judgment in an even more celebrated statement:167 It is important to remember that the Act of 1924 was the outcome of an International Conference and that the rules in the Schedule have an international currency. As these rules must come under the consideration of foreign Courts it is desirable in the interests of uniformity that their interpretation should not be rigidly controlled by domestic precedents of antecedent date, but rather that the language of the rules should be construed on broad principles of general acceptation. Lord Macmillans statement has been relied on heavily in many important cases. In Maxine Footwear Co. v. Canadian Government Merchant Marine Ltd.,169 the noble Lord was cited by the Privy Council, which went on to discard the old doctrine of stages of seaworthiness. The opinion was also referred to in Riverstone Meat Co. Pty. Ltd. v. Lancashire Shipping Co. (The Muncaster Castle),170 where the House of Lords held that due diligence to provide a seaworthy vessel required more than appointing qualified experts to do the job. In The Anglo-Indian,171 the Supreme Court of Canada relied on Lord Macmillan to apply the Canadian version of the Rules, while disregarding the Vita Food172 decision of the Privy Council as having no bearing on the issue at
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Stag Line Ltd. v. Foscolo, Mango & Co. [1932] A.C. 328 at pp. 342-343, [1931] 41 Ll. L. Rep. 165 at p. 171 (H.L.). 167 Ibid., A.C. at p. 350, Ll. L. Rep. at p. 174. 168 The point made in Stag Line Ltd. by Lord Macmillan is pertinent when interpreting any international convention, not only the Hague Rules. This can be seen, for example, in Buchanan & Co. v. Babco Ltd., [1978] A.C. 141, [1978] 1 Lloyds Rep. 119 (H.L.), a decision dealing with the CMR Convention on Road Transport, and Fothergill v. Monarch Airlines, [1981] A.C. 251, [1980] 2 Lloyds Rep. 295 (H.L.), a Warsaw Convention decision, where Lord Macmillans celebrated dictum was referred to by the House of Lords. 169 [1959] A.C. 589 at p. 603, [1959] 2 Lloyds Rep. 105 at p. 113 (P.C.). 170 [1961] A.C. 807 at 874, [1961] 1 Lloyd's Rep. 57 at p. 88, 1961 AMC 1357 at p. 1400 (H.L.). 171 Dominion Glass Co. Ltd. v. The Anglo Indian [1944] S.C.R. 409 at p. 420, 1944 AMC 1407 at p. 1418. 172 Vita Food Products Inc. v. Unus Shipping Co. (Hurry On), [1939] A.C. 277, (1939) 63 Ll. L. Rep. 21, 1939 AMC 257 (P.C.).
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hand.173 More recently, the words of Lord Macmillan were recalled by the English Court of Appeal in The Rafaela S,174 prompting Lord Justice Rix to examine in detail not only the statements made by representatives of national delegations at the conferences of 1922 and 1923 leading up to the adoption of the Hague Rules in 1924 on the question of whether straight bills of lading were intended to be covered by the Rules,175 but also the more recent decisions on the same point reached by courts in the Netherlands, Hong Kong, Singapore and France, as well as England.176 Lord Macmillans famous holding has also influenced American judges. It was cited by the California Court of Appeals in Francosteel Corp. v. N.V. Nederlandsch Amerikaansche Stoomvaart-Maatschappij177 in deciding that the one-year time bar of U.S. COGSA 1936 applies even in cases of deviation such as unjustified deck carriage. The Ninth Circuit invoked the same citation to support its decision in Sunkist Growers, Inc. v. Adelaide Shipping Lines, Ltd.,178 where the fire exception of COGSA (46 U.S.C. Appx. 1304(2)(b)) was held to be effective as a defence of the carrier only if the carrier first proved his exercise of due diligence to make the ship seaworthy before and at the beginning of the voyage. Courts in different parts of the Commonwealth have made similar pronouncements. In Australia, for example, the High Court, in Shipping Corp. of India Ltd. v. Gamlen Chemical Co. (Australasia) Pty. Ltd., reaffirmed that:179 It has been recognized that a national court, in the interests of uniformity, should construe rules formulated by an international convention, especially rules formulated for the purpose of governing international transactions such as the carriage of goods by sea, in a normal manner, appropriate for the interpretation of an international convention, unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation, to repeat the
See also the Great China Metal Industries Co. Ltd. v. Malaysian International Shipping Corp. (The Bunga Seroja) (1998) 158 A.L.R. 1 at p. 41, [1999] 1 Lloyds Rep. 512 at p. 536, [1999] AMC 427 at p. 481 (High C. of Aust.): In construing a text such as the Hague Rules, this Court, to the greatest extent possible, should prefer the construction which is most consistent with that which has attracted general international support rather than one which represents only a local or minority opinion. 174 [2003] 2 Lloyds Rep. 113 (C.A.). See also The Kapitan Petko Voivoda [2003] 2 Lloyds Rep. 1 at p. 12 (C.A.). 175 [2003] 2 Lloyds Rep. 113 at pp. 126-130 (C.A.). 176 Ibid. at pp. 134-139. 177 249 Cal. App.2d 880 at p. 889, 1967 AMC 2440 at p. 2448 (Cal. App. 1967), cert. denied, 389 U.S. 931 (1967). 178 603 F.2d 1327 at p. 1338, 1979 AMC 2787 at pp 2802-2803 (9 Cir. 1979), cert. denied, 444 U.S. 1012, 1980 AMC 2102 (1980). 179 (1980) 147 C.L.R. 142 at pp. 159-160, (1980) 32 A.L.R. 605 at p. 618 (High C. of Aust.), cited with approval by Callinan, J. in Great China Metal Industries Co. Ltd. v. Malaysian International Shipping Corp. Berhad (The Bunga Seroja) (1998) 158 A.L.R. 1 at p. 52, 1999 AMC 427 at p. 496, [1999] 1 Lloyds Rep. 512 at p. 543 (High C. of Aust. per Callinan, J.). See also Ryoden Machinery Co. Ltd. v. Owners of the Ship Anders Maersk [1986] 1 Lloyds Rep. 483 at p. 485, 1986 AMC 1269 at p. 1272 (Hong Kong High C. (Adm.)).
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words of Lord Wilberforce in James Buchanan & Co. Ltd. v. Babco Forwarding & Shipping (UK) Ltd. [citation omitted]; see also Stag Line Ltd. v. Foscolo, Mango & Co. Ltd. [citation omitted]. Mason and Wilson, JJ. went on to say that the meaning of words and terms used in a convention might be elucidated to some extent by the consistent meaning assigned to them in previous domestic law, but warned that interpretation of new international rules should not become deformed by the construction of their forerunners under such municipal law:180 There is a high probability that when such words and expressions have been incorporated in a convention, they have been incorporated with knowledge of the meaning which has been given to them by national courts. Nor do the principles of interpretation of an international convention exclude recourse to the antecedent municipal law of nations for the pupose of elucidating the meaning and effect of the convention and the new rules which it introduces. It would be extremely difficult to interpret the new rules as if they existed in a vacuum without taking into account antecedent municipal law and the problems which its application generated. However, in resorting to antecedent municipal law we need to recollect that it is the language of the Hague Rules that we are expounding, the antecedent law providing a background for that exposition by enabling us more readily to gauge the sense and direction of the new rules which the convention introduces. (Emphasis added) In Great China Metal Industries Co. Ltd. v. Malaysian International Shipping Corp. Berhad (The Bunga Seroja), the High Court of Australia (per Kirby, J.) stated plainly that:181 The approach of this Court to the construction of an international legal regime such as that found in the Hague Rules must conform to settled principle. Reflecting on the history and purposes of the Hague Rules, the Court should strive, so far as possible, to adopt for Australian cases an interpretation which conforms to any uniform understanding of the rules
Ibid., 147 C.L.R. at pp. 159-160, 32 A.L.R. at pp. 618-619. For an example of how the antecedent municipal law of both the United States and the United Kingdom dating from before the adoption of the Hague Rules and COGSA was carefully examined, but not permitted to control, the Courts ultimate decision that the shipper should be held strictly liable under COGSA for loading inherently dangerous goods, even where he lacked actual or constructive knowledge of the danger before shipment, see Senator Linie GmbH v. Sunway Line, Inc. 291 F.3d 145 at pp. 161-166, 2002 AMC 1217 at pp. 1236-1240 (2 Cir. 2002). 181 (1998) 158 A.L.R. 1 at p. 40, [1999] 1 Lloyds Rep. 512 at p. 536, 1999 AMC 427 at p. 450 (High C. of Aust.). Unfortunately, however, the Australian High Court in this decision did not support the general, international interpretation of the peril of the sea defence of the carrier of art. 4(2)(c) of the Hague and Hague/Visby Rules. See W. Tetley, Marine Cargo Claims, 4 Ed., 2007, Chap. 18, Peril of the Sea and Similar Exceptions (available on-line in a preliminary version at http://tetley.law.mcgill.ca/maritime/ch18.pdf).
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found in the decisions of the courts of other trading countries. It would be deplorable if the hard won advantages of international uniformity, secured by the Rules, were undone by serious disagreements between different national courts. 3) The principle of standardization

Similar, but not identical, to the principle of international construction enunciated above is the principle of standardization; that is, the Rules must be construed so as to encourage standard and common rules of transport throughout the world. Uniformity of law enables the shipper who ships goods anywhere in the world to know the risks he is taking and the rights he possesses. Uniformity of law enables the carrier to know his rights and responsibilities no matter which port his vessel enters. The bill of lading, being a receipt for cargo, a contract of carriage and a document of title, and therefore an instrument of integrity, should have the same meaning no matter where it is issued.182 This principle was enunciated by Viscount Simonds in Riverstone Meat Co. Pty. v. Lancashire Shipping Co. (The Muncaster Castle):183 The Hague Rules, as is well known, were the result of the Conference on Maritime Law held at Brussels in 1922 and 1923. Their aim was broadly to standardize within certain limits the rights of every holder of a bill of lading against the shipowner, prescribing an irreducible minimum for the responsibilities and liabilities to be undertaken by the latter. We also find a reference to the uniform nature of the rules in The Asturias:184 The purpose of the Act is to create international uniformity.

The importance of interpreting bills of lading and related documents, such as Himalaya clauses, to conform to world trade practices was acknowledged by the Supreme Court of Canada in the Buenos Aires Maru, [1986] 1 S.C.R. 752 at pp. 788-789, 1986 AMC 2580 at p. 2609: In admiralty or marine cases we are dealing with international commerce. There is sound reason to promote uniformity in this field and as great a degree of certainty as may be possible. In the ordinary course of commerce, carriers, stevedores and terminal operators have established practices which are widely followed and generally understood by all concerned. Bills of lading and stevedoring contracts are made in many languages frequently involving different rules and conditions and all must be made operative in the general practice of marine transportation. Himalaya clauses have become accepted as a part of the commercial law of many of the leading trading nations, including Great Britain, the United States, Australia, New Zealand, and now in Canada. It is thus desirable that the courts avoid constructions of contractual documents which would tend to defeat them. 183 [1961] A.C. 807 at p. 836, [1961] 1 Lloyds Rep. 57 at p. 67, 1961 AMC 1357 at p. 1362 (H.L.). 184 40 F. Supp. 168 at p. 169,1941 AMC 761 at p. 762 (S.D. N.Y. 1941).

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Similarly, in The Bunga Seroja, Kirby J. of the High Court of Australia, stated:185 International treaties should be interpreted uniformly by the contracting States, especially in the case of treaties such as the Hague Rules whose aim is to harmonise and unify the law in cases where differing rules previously applied in the contract States. The New South Wales Court of Appeal sounded the same note in Brown Boveri (Australia) Pty. Ltd. v Baltic Shipping Co (The Nadezhda Krupskaya):186 In such circumstances, it is sensible that Australian Courts should endeavour, so far as possible, to give the words in the Rules a construction which brings the results of litigation upon them in Australia into harmony with the results reached elsewhere. The Second Circuit in the United States forcefully repeated the principle in Senator Linie GmbH v. Sunway Line, Inc..187 In the face of uncertain American authority on the point, that prestigious maritime court expressly chose to follow the decision of the House of Lords in Effort Shipping Co. v. Linden Management S.A. (The Giannis N. K.),188 and thus bring Second Circuit law into conformity with that of the U.K., by holding that a shipper is strictly liable for damage to the ship resulting from shipping inherently dangerous goods, even where neither the shipper nor the carrier had actual or constructive preshipment knowledge of the cargos inherently dangerous nature. Citing Granite State Ins. Co. v. M/V Caraibe,189 the Court held:190 One important aspect of the international agreement [the Brussels Convention 1924] and its United States counterpart [COGSA 1936] is the standardization of liability expectations. In essence, the purpose of these laws is to allow international maritime actors to operate with greater efficiency under a mantle of fairness. Giving effect to such standardization, the Senator Linie decision concluded:191 We note, furthermore, that in conforming our construction of COGSA 1304(6) to that given to its British counterpart by the House of Lords in Effort Shipping, we are furthering another broad purpose of COGSA and the Hague Rules: international unformity in the law of carriage of goods by sea. One point on which pre-1936 Second Circuit cases agreed unanimously was that in matters of commercial law our decisions should conform to the English decisions, in the absence of some rule of public policy which would forbid. [citations omitted]. Today we reaffirm our

(1998) 158 A.L.R. 1 at p. 19, [1999] 1 Lloyds Rep. 512 at p. 523, [1999] AMC 427 at p. 450. [1989] 1 Lloyds Rep. 518 at p. 521 (N.S.W.S.C. C.A.). See also Transworld Oil (USA) Inc. v. Minos Compania Naviera (The Leni) [1992] 2 Lloyds Rep. 48 at p. 58. 187 291 F.3d 145, 2002 AMC 1217 (2 Cir. 2002). 188 [1998] A.C. 605, [1998] 1 Lloyds Rep. 337, 1998 AMC 1050 (H.L.). 189 825 F. Supp. 1113 at p. 1123, 1994 AMC 680 at p. 694 (D. P.R. 1993), which in turn was citing Gilmore & Black, The Law of Admiralty, 2 Ed., Foundation Press, Mineola, N.Y., 1975 at pp. 143-144. 190 291 F.3d 145 at p. 158, 2002 AMC 1217 at p. 1232 (2 Cir. 2002). 191 Ibid., F.3d at pp. 169-170, AMC at pp. 1246-1247.
186

185

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earlier decisions in recognizing the importance of international uniformity in the laws governing the maritime trade. If the Hague and Hague/Visby Rules are to be effective and to achieve their purpose, that is, uniformity in international carriage of goods by sea, it is essential that courts bear in mind these three principles of interpretation when applying the Rules in specific cases (plain meaning, international construction and standardization). Towards this end, the history of carriage of goods by sea, the development of the Rules, and their purpose must all be considered. 4) Reference to the history of the Rules

A study of the historical events which brought the Hague and Hague/Visby Rules about is not only advisable, but at times necessary, in order to understand how one law was built on another or how it answered a particular need of commerce. The perceived limits of the Harter Act192 often explain the provisions of COGSA,193 just as the defects in the Law of April 2, 1936194 of France brought about the Law of June 18, 1966.195 The disputed articles of the Hague Rules resulted in the Visby Rules. An example of judicial reference to the history of the Rules is found in The Muncaster Castle decision, where Viscount Simonds stated:196 To ascertain [the] meaning [of the Hague Rules] it is, in my opinion, necessary to pay particular regard to their history, origin and context, and, as I think the courts below have not paid sufficient regard to this aspect of the case, I must deal with it at some length. Viscount Simonds then followed with reference to the Brussels Conferences of 1922 and 1923, the United States Harter Act of 1893,197 the Australian Sea-Carriage of Goods Act of 1904,198 and the Canadian Water Carriage of Goods Act of 1910.199 A further example of the use of legislative history in the U.K. is found in The Sandrina.200 There, the House of Lords, in interpreting the U.K. Administration of Justice Act, 1956,201 reviewed the debates at the Comit Maritime International conference in Naples, 1951, held in preparation for the 1952 Brussels Diplomatic Conference. In particular, the
46 U.S. Code Appx. 190-196 (1893). 46 U.S. Code Appx. 1300-1315 (1936). 194 Law of April 2, 1936. 195 Law No. 66-420 of June 18, 1966. 196 [1961] A.C. 807 at p. 836, [1961] 1 Lloyds Rep. 57 at p. 67, 1961 AMC 1357 at p. 1362 (H.L.). See also Shipping Corp. of India Ltd. v. Gamlen Chemical Co. (Australasia) Pty. Ltd. (1980) 147 C.L.R. 142 at pp. 158-159, (1980), 32 A.L.R. 609 at p. 618 (High C. of Aust.). 197 46 U.S.C. Appx. 190-196. 198 No. 14 of 1904. 199 9 & 10 Edw. 7, c. 61. 200 Gatoil International Inc. v. Arkwright-Boston Manufacturers Mutual Insurance Co. and Others (The Sandrina), [1985] A.C. 255 at pp. 263-265, [1985] 1 Lloyds Rep. 181 at pp. 183-184 (H.L.). 201 U.K. 4 & 5 Eliz. 2, c. 46.
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positions of the Dutch, British and French delegations were considered. Lord Wilberforce, in The Sandrina, argued for acceptance, but cautious use, of travaux prparatoires in aid of the interpretation of conventions or treaties of private law.202 Following a similar path, Lord Justice Rix, in The Rafaela S, devoted several pages of his speech to a review of certain statements made at the 1922 and 1923 conferences preceding the adoption of the Hague Rules in 1924, in order to cast light on the long contentious point as to whether straight (i.e. nominative) bills of lading were intended by the drafters of that convention to be subject to its provisions.203 Lord Wilberforce in The Sandrina relied on previous comments he made in Fothergill v. Monarch Airlines Ltd.,204 a Warsaw Convention205 case, where he suggested that two conditions must be fulfilled before such documents can be used: first, that the material is public and accessible; secondly, that it clearly and indisputably points to a definite legislative intention. The Scottish Court of Session reiterated this cautious approach in 1997 in Landcatch Ltd. v. IOPCF, a marine oil pollution case, where Lord Gill held:206 The first task for the court in interpreting the relevant provisions is to look to the sections themselves. The Court should start from the assumption that Parliament has accurately implemented the treaty obligations set out in the relevant Conventions. The sections should therefore be construed in the first instance without reference to the Conventions or other related sources such as travaux preparatoires. If the sections disclose a clear-cut meaning, then that is the meaning that they should be given, whether or not that meaning is at odds with the assumed purpose of the Convention. It is only if the statutory provisions are obscure or ambiguous that there is any need to resort to the Conventions themselves, or to any other secondary sources, as an aid to construction (Salomon v. CEC [1967] 2 Q.B. 116 (C.A. per Diplock, LJ at pp. 143-144). At that point, it becomes a matter for the court as to the weight to be given to the various secondary sources of assistance in the interpretation of the statutory provisions (cf. Fothergill v. Monarch Airlines [1981] A.C. 251 at p. 295 (Lord Scarman at p. 295C) . I understood Counsel for the pursuers to agree that this is the correct approach.
Supra, [1985] A.C. at p. 263, [1985] 1 Lloyds Rep. at p. 183. [2003] 2 Lloyds Rep. 113 at pp. 126-130. See also The Jordan II [2003] 2 Lloyds Rep. 87 at pp. 97-99 (C.A.), studying the travaux prparatoires of the Hague Rules in an effort to decide whether art. 3(2) of those Rules was intended to require the carrier to properly and carefully load, stow and discharge cargo, or whether he was free to contract some or all of those operations to the shipper or consignee. 204 [1981] A.C. 251 at p. 276, [1980] 2 Lloyds Rep. 295 at p. 301 (H.L.). 205 Convention for the Unification of Certain Rules Relating to International Transportation by Air, adopted at Warsaw, October 12, 1929, ICAO Doc. 9201, 49 Stat. 3000, T.S. No. 876 (1934), note following 49 U.S.C. 40105. 206 [1998] 2 Lloyds Rep. 552 at pp. 566-567 (Sc. Ct. of Session).
203 202

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Despite these recent decisions by the House of Lords and Court of Session, it is generally not the practice in British Commonwealth jurisdictions to look at statements made in Parliament regarding the purpose or scope of a legislative act.207 There is, however, some willingness to consider travaux prparatoires in construing international conventions,208 although the need for caution in doing so is often mentioned.209 Lord
In Fothergill v. Monarch Airlines, [1981] A.C. 251 at p. 276, [1980] 2 Lloyds Rep. 295 at p. 301 (H.L.), Lord Wilberforce reviewed the scarce jurisprudential support for the use of travaux prparatoires in interpreting an international statute: There is little firm authority in English law supporting the use of travaux prparatoires in the interpretation of treaties or conventions. The passage usually cited in support of such use is from the judgment of Lord Reading C.J. in Porter v. Freudenberg, [1915] 1 K.B. 857, 876 when reference was made to statements made in a committee of the conference which prepared the Hague convention of 1907 upon the Laws and Customs of War on Land. The judgment contains no reasoning in support of this approach, and the case was decided upon the wording of the relevant article in its context in preference to the (inconsistent) statements. There is a passing reference to travaux prparatoires in relation to an international convention in Post Office v. Estuary Radio Ltd., [1968] 2 Q.B. 740, per Diplock L.J., at p. 761, but even this is tentatively expressed. Viscount Dilhorne, in Buchanan & Co. v. Babco Ltd. [1978] A.C. 141 at p. 157, [1978] 1 Lloyds Rep. 119 at p. 125 (H.L.), relied on such antiquated authority as Cokes Institutes to support the use of travaux prparatoires: In construing the terms of a convention it is proper and indeed right, in my opinion, to have regard to the fact that conventions are apt to be more loosely worded than Acts of Parliament. To construe a convention as strictly as an Act may indeed lead to a wrong interpretation being given to it. In construing a convention as in construing an Act where the language used is capable of two interpretations one must seek to give effect to the intentions of those who made it. (Coke 4 Inst. 330). The author, who spent eight years in a legislative assembly both on the opposition benches and in the government, agrees with the traditional British position of ignoring the travaux prparatoires or the legislative history (as it is called in the United States). This is because legislators sometimes give one reason publicly for presenting or supporting a statute but actually are motivated by other important, valid considerations which they do not believe it is politic to reveal at that moment or ever. This is why the delegates to the Constitutional Convention meeting in Philadelphia in 1787, expressly banned any verbatim minutes of their debates. It is therefore advisable to view parliamentary debates with circumspection when interpreting the statute itself. See also Gosselin v. Ross (1902-03), 33 S.C.R. 255 at p. 264 et seq. and Assam Rly. v. Commissioners of Inland Revenue [1935] A.C. 445 at p. 457 et seq. (H.L.). 208 See Great China Metal Industries Co. Ltd. v. Malaysian International Shipping Corp. Berhad (The Bunga Seroja) (1998) 158 A.L.R. 1, [1999] 1 Lloyds Rep 512, [1999] AMC 427, where the Australian High Court stated, on the basis of legislative history, that: it seems likely that the English common law rules provided the conceptual framework for the Hague Rules. (A.L.R. at p. 20, Lloyds Rep. at p. 524, AMC at p. 451). The travaux prparatoires were also given consideration (see A.L.R. at pp. 20, 38-40 and 54-55, Lloyds Rep. at pp. 523-524, 535-536 and 544-545, AMC at pp (per McHugh, J.). 451, 477-479 and 499-500). See also Transworld Oil (USA) Inc. v. Minos Compania Naviera (The Leni) [1992] 2 Lloyds Rep. 48 at p. 52 : I would have considered it important to have regard to what is known about the context and purpose of the 1924 Convention. 209 In Landcatch Ltd. v. IOPCF [1998] 2 Lloyds Rep. 552 at p.568, the Scottish Court of Session, although acknowledging the risks of doing so, nevertheless reviewed the travaux prparatoires of two international conventions concerning liability and compensation for oil pollution damage, finding that those travaux reinforced the conclusion that neither of those conventions provided pollution victims with any claim for pure economic loss not directly connected with harm to their persons or damage to property owned or possessed by them. See also King v. Bristow Helicopters Ltd. [2002] 1 Lloyds Rep. 745 at pp. 751-752 (H.L.), where the travaux prparatoires of the Warsaw Convention 1929 were among the factors
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Steyn, reaffirming Lord Wilberforces position in Fothergill, marked the parameters of reliance on travaux prparatoires in Effort Shipping Co. Ltd. v. Linden Management S.A. (The Giannis N.K.):210 Although the text of a convention must be accorded primacy in matters of interpretation, it is well settled that the travaux prparatoires of an international convention may be used as supplementary means of interpretation: compare article 31 of the Vienna Convention on the Law of Treaties, Vienna, 23 May 1969. Following Fothergill v. Monarch Airlines Ltd. [1981] A.C. 251, I would be quite prepared, in an appropriate case involving truly feasible alternative interpretations of a convention, to allow the evidence contained in the travaux prparatoires to be determinative of the question of construction. But that is only possible where the court is satisfied that the travaux prparatoires clearly and indisputably point to a definite legal intention: see Fothergill v. Monarch Airlines Ltd., per Lord Wilberforce, at p. 278C. Only a bulls eye counts. Nothing less will do. 211 In the United States, on the other hand, courts often interpret a statute in the light of comments made during the legislative debates.212 In regards to COGSA, the United States Supreme Court, when discussing the rights of stevedores in Herd & Co. Inc. v. Krawill Machinery Corp.,213 declared: The legislative history of the Act shows that it was lifted almost bodily from the Hague Rules of 1921, as amended by the Brussels Convention of 1924, 51 Stat. 233. The effect of those Rules was to establish uniform ocean bills of lading to govern the rights and liabilities of carriers and shippers inter se in international trade.

taken into account in deciding that the Warsaw Convention provided only for the air carriers liability for physical, and not for mental, injury or illness sustained by airline passengers. 210 [1998] A.C. 605 at p. 623, [1998] 1 Lloyds Rep. 337 at pp. 347-348, 1998 AMC 1050 at p. 1067 (H.L.). 211 The bulls-eye metaphor has since been reiterated in other decisions involving interpretation of the Hague or Hague/Visby Rules, including The Jordan II [2003] 2 Lloyds Rep. 87 at p. 97 (C.A.) and The Rafaela S [2003] 2 Lloyds Rep. 113 at p. 126 (C.A.). 212 See in general Day v. Trans World Airlines 528 F.2d 31 at p. 34 (2 Cir. 1975), cert. denied, 429 U.S. 890 (1976) and references therein.; Air France v. Saks 470 U.S. 392 (1985); TWA v. Franklin Mint 466 U.S. 234 (1984). See also the Restatement (Third) of Foreign Relations Law, 1987 at sect. 325, comment (g): Courts in the United States are generally more willing than those of other states to look outside the instrument to determine its meaning. But see, however, Frankfurter J.s cautionary remark, in Some Reflections on the Reading of Statutes (1947) 47 Columbia L. Rev. 527 at p. 543, that spurious use of legislative history must not swallow the legislation so as to give point to the quip that only when legislative history is doubtful do you go to the statute. See In Re Prudential Lines, Inc. 69 B.R. 439 at p. 449 (Bkrtcy, S.D.N.Y. 1987). 213 359 U.S. 297 at p. 301, 1959 AMC 879 at pp. 882-83, [1959] 1 Lloyds Rep. 305 at p. 308 (1959).

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The Court then followed with specific references to the congressional debates and committee reports on COGSA.214 When ruling on an undecided question of law, the U.S. Courts of Appeals at times resort to legislative history. For example in Comm. Trans. Internat. v. Lykes Bros.,215 the U.S. Court of Appeals for the Second Circuit referred to the legislative history of COGSA and to a statement of Senator White of Maine. Similarly, in Spanish American Skin Co. v. M/S Ferngulf,216 the Second Circuit referred to the verbatim reports of the House Committee hearings which discussed COGSA before its passage. In Senator Linie GmbH. v. Sunway Line, Inc.,217 the legislative history of both the Hague Rules 1921 and 1924 and of U.S. COGSA 1936 were reviewed by the Second Circuit, in interpreting art. 4(6) of the Rules and the identically-worded provision of COGSA (46 U.S.C. Appx. 1304(6)), resulting in the decision that the shippers liability for loading inherently dangerous goods was strict and not knowledge-based. In contrast, French courts almost never make reference to legislative history in their decisions. Legislative reports and discussions, however, do form an essential part of la doctrine and detailed information is published with the text of any law.218 The travaux prparatoires are used to determine the spirit of a law, which is preferred today as a method of interpretation to the older approach of minute, exegetical analysis of the specific wording of enactments.219 5) Carrier/shipper compromise and balance

The Hague Rules were a compromise between carrier and shipper interests,220 designed to secure greater fairness as well as more uniform carriage of goods by sea law.
Ibid., U.S. at pp. 301-302, AMC at p. 883, Lloyds Rep. at p. 308. 243 F.2d 683 at p. 686, 1957 AMC 1188 at p. 1192 (2 Cir. 1957). 216 242 F.2d 551 at p. 554, 1957 AMC 611 at p. 614 (2 Cir. 1957). See also The Bill, 55 F. Supp. 780,1944 AMC 883 (D. Ma. 1944). 217 291 F.3d 145 at pp. 158-161, 2002 AMC 1217 at pp. 1231-1236 (2 Cir. 2002). In reviewing this legislative background, the Court referred to Michael F. Sturley, ed., The Legislative History of the Carriage of Goods by Sea Act and the Travaux Prpratoires of the Hague Rules, vol. 2, F.B. Rothman, Littleton, Colorado, 1990. See F.3d at p. 159, note 18, AMC at p. 1233, note 18. 218 See the text accompanying the Law of April 2, 1936 published in Dalloz, Jurisprudence gnrale, Recueil priodique et critique, 1937 at pp. 1-14. See also H. Capitant, Les Travaux prparatoires et linterprtation des lois, in Kahn-Freund, Lvy and Rudden, eds., A Source-book on French Law, 2 Ed., Clarendon Press, Oxford, 1979, at pp. 100-106 (omitted from 3 Ed., 1991), and Philippe Grard, Le recours aux travaux prparatoires et la volont du lgislateur, in Michel van de Kerchove (ed.), LInterprtation en droit, Bruxelles, 1978, at pp. 51-95; D. Pollard, Sourcebook on French Law, 1997 at p. xxiv. See also Franois Terr, Introduction gnrale au droit, Dalloz, Paris, 2000 at para. 470(a). 219 Nicole Guimezanes, Introduction au droit franais, Nomos Verlagsgesellschaft, Baden-Baden, 1999 at p. 31. 220 See, for e.g., Encyclopaedia Britannica v. Hong Kong Producer 422 F.2d 7 at p. 11, 1969 AMC 1741 at p. 1746, [1969] 2 Lloyds Rep. 536 at p. 539 (2 Cir. 1969); Mormaclynx (Leather's Best Inc. v. S.S. Mormaclynx) 313 F. Supp. 1373 at p. 1381, 1970 AMC 1310 at p. 1323, [1970] 1 Lloyds Rep. 527 at p. 534 (E.D. N.Y. 1970), affd in pertinent part, revd in part, 451 F.2d 800, 1971 AMC 2383 (2 Cir. 1971).;
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In this regard, Lord Steyn, in Effort Shipping Co. Ltd. v. Linden Mnagement S.A., observed:221 This much we know about the broad objective of the Hague Rules: it was intended to reign in the unbridled freedom of contract of owners to impose terms which were so unreasonable and unjust in their terms as to exempt from almost every conceivable risk and responsibility; it aimed to achieve this by a pragmatic compromise between interests of owners and shippers; and the Hague Rules were designed to achieve a part harmonisation of the diverse laws of trading nations at least in the areas which the Convention covered. [Emphasis added] Concessions were made by both parties in fact, almost all articles of the Rules consist of compromises and a balancing. For example, carriers could no longer exclude or lessen responsibility under the Rules, but were not responsible for more than 100 sterling per package or unit, or for error in the navigation or management of the ship.222 There is no absolute obligation to provide a seaworthy vessel; due diligence, however, must be exercised to make the vessel seaworthy, but only before and at the beginning of the voyage.223 Although this balancing must be taken into consideration in interpreting the Rules, it does not mean that the Court must balance the equities of each case. Rather, the court should attempt to find the historical balance established by the draftsmen of the international convention.224 The Visby Rules were an updating of the carrier/shipper balance with a slight list towards shippers in the light of modern law on responsibility. The revisions, however, were far too modest - the Hamburg Rules were the inevitable result.

Varian Assocs. v. C. G. T., 85 Cal. App. 3d 369 at p. 375, 149 Cal. Rptr. 534 at pp. 538-539, 1980 AMC 450 at p. 456 (Cal. C.A. 1979). 221 [1998] A.C. 605 at p. 621, [1998] 1 Lloyds Rep. 337 at p. 346, 1998 AMC 1050 at p. 1065 (H.L.). 222 Art. 4(5). 223 Art. 3(l). 224 For an example of this balancing, see Senator Linie GmbH. v. Sunway Line, Inc. 291 F.3d 145 at p. 169, 2002 AMC 1217 at pp. 1245-1246 (2 Cir. 2002), where the Second Circuit, in deciding to hold the shipper strictly liable for loading dangerous goods, observed: we conclude today that a strict-liability construction of 1304(6) will foster fairness and efficiency in the dealings of commercial maritime actors. In contrast to a carrier, which typically is in the position of taking aboard its vessel a large quantity and variety of cargoes, a shipper can be expected to have greater access to and familiarity with goods and their manufacturers before those goods are placed in maritime commerce. If an unwitting party must suffer, it should be the one that is in a better position to ascertain ahead of time the dangerous nature of shipped goods. That party in many cases will be the shipper. The concern for balance is also very evident in allocating the burden of proof in cargo claims. See, for example, Caemint Food v. Lloyd Brasileiro 647 F.2d 347 at p. 354, 1981 AMC 1801 at p. 1812 (2 Cir. 1981): It is fair to impose on the plaintiff the burden of showing the condition of packaged goods on delivery because the shipper has superior access to information as to the condition of the goods when delivered to the carrier, just as the carrier has superior access to information as to what happened thereafter.

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6)

Strict construction of the exceptions in the Rules

Exception provisions in statutes, like exception clauses in contracts, are to be construed strictly. This general principle of statute and contract interpretation has almost universal application. Thus, the exceptions in article 4(2) of the Hague and Hague/Visby Rules must be applied restrictively. Greer L.J., in his dissenting judgment in Gosse Millerd Ltd. v. Canadian Government Merchant Marine Ltd.,225 stated his view that if the exception provisions of article 4(2)(a) were interpreted in their widest sense they would ... in practice reduce to very small dimensions the obligation carefully to handle, carry, keep and care for the cargo ... He went on to hold that ... a reasonable construction of the rules requires that a narrower interpretation should be put on the excepting provisions of Art. IV (2)(a). Greer L.J.s dissent was upheld on appeal to the House of Lords, which reversed the majority opinions.226 Similarly, in Foreman & Ellams Ltd. v. Federal Steam Navigation Co.,227 Wright J. said: A negligence or exception clause in a statute, as in a contract, ought, I think, to be strictly construed. The purpose of construing the exception provisions strictly is to preserve the careful balance between carrier and shipper interests provided for in the Rules. As noted by the court in The Mormaclynx (Leathers Best Inc. v. S. S. Mormaclynx):228 The Carriage of Goods by Sea Act represented a compromise between the interests of carriers and shippers. It was intended to increase the liability of carriers, and set a standard below which they could not go. Likewise, in Encyclopaedia Britannica v. Hong Kong Producer, it was held:229 The purposes behind Harter, the Hague Rules and COGSA were to achieve a fair balancing of the interests of the carrier, on the one hand, and the shipper, on the other, and also to effectuate a standard and uniform set of provisions for ocean bills of lading.

(1927) 29 Ll. L. Rep. 190 at p. 197, [1928] 1 K.B. 717 at p. 743 (C.A.). [1929] A.C. 223, (1928) 32 Ll. L. Rep. 91 (H.L.). 227 [1928] 2 K.B. 424 at p. 439, (1928) 30 Ll. L. Rep. 52 at p. 59. 228 313 F. Supp. 1373 at p. 1381, 1970 AMC 1310 at p. 1323, [1970] 1 Lloyds Rep. 527 at p. 534 (E.D. N.Y. 1970), affd in pertinent part, revd in part, 451 F.2d 800, 1971 AMC 2383 (2 Cir. 1971). 229 422 F.2d 7 at p. 11, 1969 AMC 1741 at p. 1746, [1969] 2 Lloyds Rep. 536 (2 Cir. 1969), cert. denied, 397 U.S. 964, 1971 AMC 813 (1970). See also Campfire (Pan-American Trade and Credit Corp. v. Campfire) 156 F.2d 603 at p. 605, 1946 AMC 1139 at p. 1142 (2 Cir. 1946), cert. denied, 329 U.S. 774, 1946 AMC 731 (1946); and Varian Assocs. v. C. G. T. 85 Cal. App. 3d 369 at p. 375, 149 Cal. Rptr. 534 at pp. 538-539, 1980 AMC 450 at p. 456 (Cal. C.A. 1978); Sunkist Growers, Inc. v. Adelaide Shipping Lines, Ltd. 603 F.2d 1327 at p. 1331, 1979 AMC 2787 at p. 2795 (9 Cir. 1979), cert. denied, 444 U.S. 1012, 1980 AMC 2102 (1980).
226

225

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The point was rephrased as follows in Vision Air Flight Service, Inc. v. M/V National Pride:230 Enacted in 1936, COGSA is a fault-based liability system that reflects a compromise of rights and liabilities between cargo interests and carriers. It seems obvious that, unless the Rules are strictly construed along the lines set forth above, the careful compromise worked out between carrier and shipping interests will be defeated. This should be the uppermost consideration of courts when construing the Rules. 7) Taking cognizance of new methods

A proper code, or even a well drafted statute, should be able to encompass and regulate new advances of science and civilization unknown at the time the law was adopted. Advances in the care of cargo and in the construction of ships result in new standards by which the rights and responsibilities of carriers are judged. This principle was clearly enunciated by the U.S. Court of Appeals in The Venice Maru.231 In 1934 the carrier used rice ventilators to protect a shipment of sardine meal. The ventilation, commonly used at that time, was the cause of a fire. It was the best known system then, however, and although by the time of the trial the block-and-channel method became the standard and accepted way of ventilating sardine meal, the Court relieved the carrier of responsibility. Similarly, the courts have adapted to new methods of combatting sweat damage by imposing a new standard of care of cargo,232 while modern scientific navigation equipment must be installed on board vessels if a due diligence seaworthiness defense is to be upheld.233 On the other hand, however, on the theory that what was unreasonable yesterday may be reasonable today, 234 some courts are willing to consider the effect on COGSA and maritime law of technological innovation and changing vessel design235 even
155 F.3d 1165 at p. 1172, 1999 AMC 1168 at p. 1178 (9 Cir. 1998). See also C.A. Seguros Orinoco v. Naviera Transpapel, C.A. 677 F. Supp. 675 at p. 681, 1988 AMC 1757 at p. 1765 (D. P.R. 1988): In 1893 Congress enacted the Harter Act, 27 Stat. 445 (1893), 46 U.S.C. secs. 190-196, as a statutory compromise between the two competing interests. Negligence clauses were prohibited, but a shipowner's liability was limited to the seaworthiness standard, excluding errors in navigation or management by the crew. The compromise worked so well that representatives of the shipping world met and promulgated the Hague Rules in 1921, amended in 1924 by the Brussels Convention, which embodied the Harter Act compromise. In 1936 Congress enacted COGSA, a nearly verbatim copy of the Hague Rules, in implementation of the Convention. 231 133 F.2d 781, 1943 AMC 277 (2 Cir. 1943), aff'd, 320 U.S. 249, 1943 AMC 1209 (1943). See also The T.J. Hooper 60 F.2d 737, 1932 AMC 1169 (2 Cir. 1932), cert. den. 287 U.S. 662 (1932). 232 See W. Tetley, Marine Cargo Claims, 3 Ed., 1988 at Chap. 43, Sweat Damage and Ventilation. 233 See Chickasaw 265 F. Supp. 595, 1966 AMC 2219 (S.D. Cal. 1966), upheld on appeal 414 F.2d 724, 1969 AMC 1682, [1970] 1 Lloyds Rep. 437 (9 Cir. 1969). 234 Electro-Tec Corp. v. S/S Dart Atlantica 598 F. Supp. 929 at p. 934, 1985 AMC 1606 at p. 1612 (D. Md. 1984). 235 Ibid. See also Mormacvega (Dupont de Nemours Internat. v. S.S. Mormacvega) 493 F.2d 97 at p. 102, 1974 AMC 67 at p. 75, [1974] 1 Lloyds Rep. 296 at p. 300 (2 Cir. 1974). See also Neuenberger
230

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though this disregards the clear wording of the Hague/Visby Rules as it affects undeclared carriage of cargo on deck.236 8) The text and other texts

The French text of the Brussels Convention of 1924 (the Hague Rules)237 is the only authoritative version of the Rules; the English text and texts in other languages are merely unofficial translations.238 The French text should, therefore, have precedence in questions of interpretation.239 Of course, a court would look at, and be bound by, its national law, which will be in the language of that country. Nevertheless, one is generally permitted to look at the origins and history of a law in order to interpret it, and the preamble of most national Hague Rules legislation refers back to the Brussels Convention, 1924. Thus, in Pyrene Co. v. Scindia Steam Navigation Co.,240 Devlin J. said: If there is any doubt, the French text (set out in Carver, 9th ed., p. 1065) makes it quite clear. Having regard to the preamble to the Act and the fact that the French text is the only authoritative version of the Convention, I think, notwithstanding [counsels] objection, that it is permissible to look
Schweizerische Allgemeine Versicherungs-Gesellschaft v. S.S. Aldebaran 1990 AMC 1886 at p. 1891, note 4 (S.D. N.Y. 1989); Insurance Company of North America v. Blue Star, Ltd. 1997 AMC 2434 at pp. 24412443 (S.D. N.Y. 1997); Konica Business Machines, Inc. v. Sea-Land Consumer, 153 F. 3d 1076 at p. 1078, 1998 AMC 2705 at p. 2708 (9 Cir. 1998); Alternative Glass Supplies v. M/V Nomzi 1999 AMC 1080 at p. 1087 (S.D. N.Y. 1999). See also Christopher Hill, Maritime Law, 5 Ed., LLP Limited, London and Hong Kong, 1998 at p. 195. 236 See W. Tetley, Marine Cargo Claims, 3 Ed., 1988 at Chap. 30, Containers and Chap 31, Deck Carriage. 237 Convention internationale pour lunification de certaines rgles en matire de connaissement signe Bruxelles le 25 aot 1924, entre en vigueur le 2 juin 1931; (Translation): International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, signed at Brussels on August 25, 1924 and entered into force on June 2, 1931. 238 The former Carriage of Goods by Sea Act, 1924 of the United Kingdom (14 & 15 Geo. 5, c. 22), which entered into force on August 1, 1924 and was repealed by the Carriage of Goods by Sea Act (1971 U.K., c. 19), was the most authoritative English translation. 239 There are no standard principles of interpretation for international conventions because of the multiplicity of ways they can be incorporated into the municipal law of a nation. Conventions, when made part of English law, may be expressed in language texts in various ways. There may be only an English statutory text which is based upon the convention, the convention itself not being incorporated in the statute. There may be an English convention text which is incorporated in the statute. There may be a French (or other language) convention text with an English translation adopted by the English statute; there may be convention texts in two languages with or without a provision that one shall prevail in case of doubt (contrast this case with the Hague Convention of 1961 on Wills). Different principles of interpretation may apply to each of these cases. (per Lord Wilberforce in Buchanan & Co. v. Babco Ltd. [1978] A.C. 141 at p. 152, [1978] 1 Lloyds Rep. 119 at p. 122 (H.L.).). While most of Lord Wilberforces statement remains true, the Vienna Convention 1969, which came into force in 1980 after Buchanan was decided, now in fact does provides certain standard principles of interpretation for international conventions. See section III(3), supra. 240 [1954] 2 Q.B. 402 at p. 421, [1954] 1 Lloyds Rep. 321 at p. 330.

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at it. I agree that it is not conclusive, but it may help solve an ambiguity if there be one. I agree also that unless the court is assisted by a French lawyer it should be looked at cautiously; but the appreciation of this particular point needs no more French than every schoolboy knows, and I think it would be pedantic to ignore it. The importance of relying upon the official language version of an international convention lies in the need for uniform interpretation. The following rationale offered by Lord Denning M.R., in Corocraft v. Pan American Airways,241 in respect to the Warsaw Convention,242 should be applied equally to the Brussels Convention of 1924: There is another, and perhaps more powerful, reason for adopting the French text. The Warsaw Convention is an international convention which is binding in international law on all the countries who have ratified it: and it is the duty of these courts to construe our legislation so as to be in conformity with international law and not in conflict with it. Seeing that the convention itself gives authority to the French text, and to the French text alone, we should so construe our legislation as to give priority to the French text over the English version. Lord Dennings holding on this point is consistent with art. 33(1) of the Vienna Convention on the Law of Treaties 1969,243 which requires that, in interpreting a treaty authenticated in more than one language, precedence be given to the language version which that instrument declares, or which the contracting states agree, to be the sole authoritative version. The United States Supreme Court has given precedence to the French text of the Warsaw Convention, for another reason as well, holding that it was necessary to consider the legal meaning of the Conventions terms in French:244 because it is our responsibility to give the specific words of the treaty a meaning consistent with the shared expectations of the contracting parties. We look to the French legal meaning for
[1969] 1 All E.R. 82 at p. 87, [1969] 1 Q.B. 616 at p. 653 (C.A.). See also comments to the same effect by Lord Wilberforce and Lord Edmund-Davies in Buchanan & Co. v. Babco Ltd. [1978] A.C. 141 at pp. 152-153 and 168-169, [1978] 1 Lloyds Rep. 119 at pp. 122-123 and 132-133 (H.L.). 242 Convention for the Unification of Certain Rules Relating to International Transportation by Air, adopted at Warsaw, October 12, 1929, ICAO Doc. 9201, 49 Stat. 3000, T.S. No. 876 (1934), note following 49 U.S.C. 40105. The U.K. gave the force of law to the Warsaw Convention 1929, in an English translation scheduled to its Carriage by Air Act, 1932, 22 & 23 Geo. 5, c. 36, but ratified the authoritative French text on February 14, 1933. See King v. Bristow Helicopters Ltd. [2002] UKHL 7 at para. 58 (H.L.). The Warsaw Convention, as amended by its Hague Protocol 1955, was subsequently incorporated into Schedule 1 of the U.K.s Carriage of Goods by Air Act, 1961, 9 & 10 Eliz. 2, c. 27, and sect. 1 of the Act provides that in the event of inconsistency between the English and French texts of the Convention, the French text shall prevail. 243 Adopted at Vienna, May 22, 1969 and opened for signature on May 23, 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679. The Convention entered into force on January 27, 1980. See discussion of the Convention at sect. III(3), supra. 244 Air France v. Saks 470 U.S. 392 at p. 399 (1985).
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guidance as to these expectations because the Warsaw Convention was drafted in French by continental jurists. The Brussels Protocol of 1968 (the Visby Rules),245 on the other hand, was signed in the French and English languages both texts being equally authentic ... Both the Hamburg Rules, 1978246 and the Multimodal Convention, 1980247 have official texts in Arabic, Chinese, English, French, Russian and Spanish. The correct principles of interpretation, when dealing with an international convention drawn in two or more languages, were discussed by Lord Wilberforce in Buchanan & Co. v. Babco Ltd.248 in respect to a 1956 international convention249 whose terms are contained in the Schedule to the Carriage of Goods by Road Act 1965:250 The Convention of 1956 is in two languages, English and French, each text being equally authentic. The English text alone appears in the Schedule to the Act of 1965 and is by that Act (section 1) given the force of law. Moreover the contract of carriage seems to have incorporated contractually this English text. It might therefore be arguable (though this was not in fact argued) by distinction from a case where the authentic text is (for example) French and the enacted text an English translation that only the English text ought to be looked at. In my opinion this would be too narrow a view to take, given the expressed objective of the Convention to produce uniformity in all contracting states. I think that the correct approach is to interpret the English text, which after all is likely to be used by many others than British businessmen, in a normal manner, appropriate for the interpretation of an international convention, unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation: Stag Line Ltd. v. Foscolo, Mango and Co. Ltd., [1932] A.C. 328, per Lord Macmillan, at p. 350. Moreover, it is perfectly legitimate in my opinion to look for assistance, if assistance is needed, to the French text. This is often put in the form that resort may be had to the foreign text if (and only if) the English text is ambiguous, but I think this states the rule too technically. As Lord Diplock recently said in this House the inherent flexibility of the English (and, one may add, any) language may make it necessary for the
Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, signed at Brussels on August 25, 1924. (The Protocol was signed on February 23, 1968 and entered into force on June 23, 1977.). 246 United Nations Convention on the Carriage of Goods by Sea, 1978, adopted at Hamburg on March 30, 1978, and in force November 1, 1992. See English, French and German texts at [1979] ETL at pp. 503559. 247 United Nations Convention on International Multimodal Transport of Goods, adopted and signed at Geneva on May 24, 1980, not in force. 248 [1978] A.C. 141 at p. 152, [1978] 1 Lloyds Rep. 119 at p. 122 (H.L.). 249 Convention on the Contract for the International Carriage of Goods by Road (the CMR Convention), adopted at Geneva, May 19, 1956, and in force July 2, 1961. 250 U.K., 1965, c. 37.
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interpreter to have recourse to a variety of aids: Carter v. Bradbeer, [1975] 1 W.L.R. 1204, 1206. There is no need to impose a preliminary test of ambiguity. Once the court finds it necessary to seek assistance from the foreign language text of the international convention under scrutiny, the question arises how the court ought to ascertain the meaning of a word or an expression in a foreign language? This issue was discussed by Lord Wilberforce in a judgment subsequent to the Buchanans case:251 The process of ascertaining the meaning [of a word or an expression in a foreign language] must vary according to the subject matter. If a judge has some knowledge of the relevant language, there is no reason why he should not use it: this is particularly true of the French or Latin languages, so long languages of our courts. There is no reason why he should not consult a dictionary, if the word is such that a dictionary can reveal its significance: often of course it may substitute one doubt for another.... In all cases he will have in mind that ours is an adversary system: it is for the parties to make good their contentions. So he will inform them of the process he is using, and, if they think fit, they can supplement his resources with other material other dictionaries, other books of reference, text-book and decided cases. They may call evidence of an interpreter, if the language is one unknown to the court, or of any expert if the word or expression is such as to require expert interpretation. Between a technical expression in Japanese and a plain word in French there must be a whole spectrum which calls for suitable and individual treatment. 9) References to foreign judgments

As a general rule, common law countries have relied on and cited judgments of the courts of England and the United States, while la doctrine and the laws and the judgments of France have greatly influenced civil law jurisdictions in respect to carriage of goods by sea. Continental authors, too, refer at times to English and American courts and authorities but, unfortunately, perhaps because of the language barrier, references rarely if ever move in the other direction.252 It is obvious that there should be many more
Fothergill v. Monarch Airlines [1981] A.C. 251 at pp. 273-74, [1980] 2 Lloyds Rep. 295 at p. 299 (H.L.). 252 The following passage from Lord Diplocks speech, in Fothergill v. Monarch Airlines [1981] 1 A.C. 251 at p. 284, [1980] 2 Lloyds Rep. 295 at p. 306 (H.L.), gives some additional reasons, beside that of language, why English courts are not easily swayed by other countries case law: As respects decisions of foreign courts, the persuasive value of a particular courts decision must depend upon its reputation and its status, the extent to which its decisions are binding upon courts of co-ordinate and inferior jurisdiction in its own country and the coverage of the national law reporting system. For instance your Lordships would not be fostering uniformity of interpretation of the Convention if you were to depart from the
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exchanges in both directions between civil law and common law jurisdictions, which are at present far too rare.253 This is extremely unfortunate because maritime law, being international law, is based on the lex mercatoria and lex maritima laws which knew no national boundaries.254 Maritime law and the law of carriage of goods by sea should be international and uniform, because goods and ships travel from one jurisdiction to another. Merchants, shippers, consignees and carriers (and their underwriters) can only have complete confidence in a contract if they are certain as to which law will apply and how it will be interpreted, no matter in what jurisdiction their claim or defence is heard. For this reason all courts of Admiralty and maritime jurisdictions throughout the world should study and be conversant with and (when the occasion arises) rely on the decisions of other jurisdictions in respect to such international conventions as the Hague and Hague/Visby Rules. The willingness of courts to consider as persuasive authority, and even to follow, decisions of foreign courts on matters of interpretation of the Hague and Hague/Visby Rules is greater today than in the past, at least as between countries within the Englishspeaking world,255 although there are still occasions where this comparative law approach
prima facie view which you had yourselves formed as to its meaning in order to avoid conflict with a decision of a French court of appeal that would not be binding upon other courts in France, that might be inconsistent with an unreported decision of some other French court of appeal and would be liable to be superseded by a subsequent decision of the Court of Cassation that would have binding effect upon lower courts in France. It is no criticism of the contents of the judgments in those foreign cases to which your Lordships have been referred if I say that the courts by which they were delivered do not appear to me to satisfy the criteria which would justify your Lordships in being influenced to follow their decisions in the interests of uniformity of interpretation. See also Lords Wilberforces and Scarmans speeches, supra, A.C. at pp. 275-276 and 294-295, Lloyds Rep. at pp. 300-301 and 312. 253 Such was not always the case in the United States, however. In The Ship Catharina 1 Pet. Adm. 104, Fed. Cas. No. 13,949, 23 Fed. Cas. 1028 at p. 1029, a district judge, writing in 1795, stated that in regards to the maritime law, the jurisprudence of other countries should be referred to: If by our own municipal laws, there are rules established, our courts are bound exclusively to follow them. But in cases where no such rules are instituted, we must resort to the regulations of other maritime countries, which have stood the test of time and experience, to direct our judgments, as rules of decision. See also Joseph Story, The Literature of the Maritime Law, Miscellaneous Writings, 1835, at p. 93, where the foreign and historical sources of maritime law which were useful to the American lawyer are discussed. 254 As to whether international maritime law, the lex maritima, still exists, as distinct from the internal municipal laws of sovereign states, see Tetley, The General Maritime Law The Lex Maritima (1994) 20 Syracuse J. Intl L. & Comm. 105-145, reprinted in [1996] ETL 469-506; Tetley, Maritime Liens & Claims, 2 Ed., Les ditions Yvon Blais Inc., Montreal, 1998, chap. 1. On the related concept of a modern lex mercatoria, increasingly evident in todays international commercial arbitration, see also Tetley, International Conflict of Laws, Les ditions Yvon Blais, Inc., Montreal, 1994 at pp. 417-419 and 868 and Tetley, International Maritime and Admiralty Law, Les ditions Yvon Blais Inc., Montreal, 2002 at pp. 442-443. See, however, statements made by Lord Diplock in The Tojo Maru [1971] 1 Lloyds Rep. 341 at p. 361 (H.L.). 255 See, for example, Sunkist Growers, Inc. v. Adelaide Shipping Lines, Ltd. 603 F.2d 1327 at p. 1337, 1979 AMC 2787 at p. 2801 (9 Cir. 1979), cert. denied, 444 U.S. 1012, 1980 AMC 2102 (1980), where the Ninth Circuit, noting the similarity between American and Canadian carriage of goods by sea statutes, both of which were founded on the Hague Rules, was clearly influenced by the Privy Councils decision in the Canadian case of Maxine Footwear v. Canadian Government Merchant Marine [1959] A.C. 589, [1959] 2 Lloyds Rep. 105 (P.C.) and by the Supreme Court of Canadas decision in Dominion Glass Co. Ltd. v.

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yields results which unfortunately tend to weaken, rather than to reinforce, international uniformity of construction.256 10) Precedence of a later statute

Occasionally, both the Hague or Hague/Visby Rules and a domestic statute must be considered together when solving a special problem. This is particularly true when a national bills of lading act or a national arbitration act affects a contract of carriage subject to the Rules. If a consistent and reasonable solution cannot be reached when applying the two statutes together, the later statute is usually given supremacy.257 This was the finding in Uniao de Transportadores v. Acoreanos,258 where the U.S. Arbitration Act of 1925, having been re-enacted in 1947,259 was held to prevail over COGSA adopted in 1936, when the two were in conflict. The libellant claimed COGSA forbade an arbitration clause calling for arbitration in Portugal, but the court ruled:260 It seems reasonable to me that if Congress, in 1947, thought that the Carriage of Goods by Sea Act of 1936 affected or forbade any provisions in the Arbitration Act of 1947, it would and could have plainly avoided any such confusion.

The Anglo Indian [1944] S.C.R. 409, 1944 AMC 1407, in deciding that the carriers obligation of due diligence to make the ship seaworthy before and at the beginning of the voyage, if violated, precluded the carrier from invoking the exception of fire under art. 4(2)(b) of the Rules and sect. 4(2)(b) of U.S. COGSA, 46 U.S.C. Appx. 1304(2)(b). More recently, the Second Circuit, in Senator Linie GmbH. V. Sunway Line, Inc. 291 F.3d 145, 2002 AMC 1217 (2 Cir. 2002), relied heavily on the House of Lords decision in Effort Shipping Ltd. v. Linden Management S.A. (The Giannis N.K.) [1998] A.C. 605, [1998] 1 Lloyds Rep. 337, 1998 AMC 1050 (H.L.), in deciding that the shipper should be held strictly liable under sect. 4(6) of U.S. COGSA (46 U.S.C. Appx. 1304(6)) for loading inherently dangerous cargo, even where it was unaware of the danger before shipment. In Effort Shipping, the House of Lords also made mention of American case law. See [1998] A.C. at pp. 624-625, [1998] 1 Lloyds Rep. at pp. 348-349, 1998 AMC at pp. 1068-1069. 256 See, for example, The Kapitan Petko Voivoda [2003] 2 Lloyds Rep. 1 (C.A.), where, although Longmore L.J. deferentially quoted Lord Macmillans statement in Stag Line Ltd. v. Foscolo Mango & Co. Ltd. [1932] A.C. 328 at p. 350, [1931] 41 Ll. L. Rep. 165 at p. 174 about the need to interpret the Hague Rules as an international convention on broad principles of general acceptation, he nevertheless refused to follow a number of non-English decisions cited, which had held that unjustified deck carriage deprived the carrier of the carriers liability limitations. Judge L.J., for his part, stated in the same case that: By way of footnote, I should add that, notwithstanding that we are considering an international convention, I can see no advantage in commenting on decisions reached in different jurisdictions. I gratefully adopt Lord Justice Longmores analysis of them. (ibid. at p. 18). 257 See Scrutton L.J. in Flannagan v. Shaw [1920] 3 K.B. 96 at p. 105 citing A.L. Smith J. in Kutner v. Phillips [1891] 2 Q.B. 267 at pp. 271-272: Now a repeal by implication is only effected when the provisions of a later enactment are so inconsistent with or repugnant to the provisions of an earlier one, that the two cannot stand together, in which case the maxim Leges posteriores contrarias abrogant (2 Inst. 685) applies. See also Craies on Statute Law, 17 Ed., London, 1971, at p. 366 et seq. and Maxwell on Interpretation of Statutes, 12 Ed., London, 1969, at p. 193 et seq. 258 84 F. Supp. 582, 1949 AMC 1161 (E.D. N.Y. 1949). 259 9 U.S. Code 1. 260 Ibid., 84 F. Supp. at p. 584, 1949 AMC at p. 1163.

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The practice of giving supremacy to a subsequent national statute must be conducted prudently, because it could result in a national or domestic law abrogating an international law and thus affecting international uniformity and the purpose of the international convention or treaty. 11) Precedence of the international convention

When France is party to an international convention, the convention has precedence over the local statute, in virtue of art. 55 of the Constitution of October 4, 1958.261 Thus in cases of conflict, the Hague/Visby Rules will have precedence over the Law of June 18, 1966.262 Art.16 of the Law of June 18, 1966263 is also specific on this point.264 Although there is no such constitutional mandate in the United Kingdom, the courts have recognized the necessity of construing the Rules with international uniformity in mind.265 VIII. The Hague/Visby Rules The Hague and Hague/Visby Rules are generally fair and commercially acceptable uniform international rules of carriage of goods by sea. They are in effect
J.O., October 5, 1958. See Tribunal de Commerce du Havre, July 31, 1970, DMF 1971, 163 at p. 166, upheld by Cour dAppel de Rouen, October 2, 1970, DMF 1971, 167. See also Pierre Lureau, Le Cas de force majeure et la loi du 2 avril 1936, DMF 1949, 179 at p. 182: Or, il a toujours t admis quen cas de conflit entre une convention internationale et une loi interne, cest la premire qui est la plus forte. Ce principe, rest longtemps thorique, a pris un caractre formel et constitutionnel depuis la Constitution du 27 octobre 1946. Larticle 28 pose en effet le principe de la supriorit du trait sur la loi interne ....; (Liberal translation): However, it has always been admitted in the case of a conflict between an international convention and a domestic law, that the former has precedence. This principle, which has long remained theoretical, has taken a formal and constitutional quality since the Constitution of October 27, 1946. Art. 28 states in effect the principle of the superiority of a treaty over a national statute .... See also Cour dAppel de Paris, June 19, 1963, DMF 1963, 666, in respect to art. 55 of the Constitution of October 4, 1958 and the Brussels Convention of 1924. 263 Law No. 66-420 of June 18, 1966. 264 Cour dAppel dAix, June 9,1978, DMF 1979, 532. Note, however, that art. 16 of the French Law no. 66-420 may now be a dead letter, in view of the coming into force in France of the Convention on the Law Applicable to Contractual Obligations, adopted at Rome, June 19, 1980, 80/934/EEC, O.J.E.C., October 9, 1980, in force April 1, 1991. See Tetley, International Conflict of Laws, 1994 at p. 712. 265 Stag Line, Ltd. v. Foscolo, Mango & Co. [1932] A.C. 328 at p. 350, (1931) 41 Ll. L. Rep. 165 at p. 174 (H.L.). See also The Eschersheim [1976] 2 Lloyds Rep. 1 at pp. 8-9 (H.L.): As the Act [The Administration of Justice Act, 1956 (4 & 5 Eliz. 2, c. 46)] was passed to enable H.M. Government to give effect to the obligations in international law which it would assume on ratifying the convention to which it was a signatory, the rule of statutory construction laid down in Salomon v. Customs and Excise Commissioners, [1966] 2 Lloyds Rep. 460, [1967] 2 Q.B. 116 and Post Office v. Estuary Radio Ltd., [1968] 2 Q.B. 740 is applicable. If there be any difference between the language of the statutory provision and that of the corresponding provision of the convention, the statutory language should be construed in the same sense as that of the convention if the words of the statute are reasonably capable of bearing that meaning.
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codifying statutes and provide an important link between the civil law and the common law, as well as being a fertile source of comparative law. In particular, the jurisprudence relating to the Rules illustrates that interpretation in civil law jurisdictions and construction in common law jurisdictions usually produce very similar results in practice. Such uniformity of interpretation is greatly aided by the understanding that the Rules, as an international convention, require a truly international interpretation to ensure that they attain their purpose of harmonizing international law of carriage of goods by sea. Unfortunately, the awareness of the need for this kind of international construction does not always seem uppermost in the minds of some courts. The House of Lords, in The Starsin,266 for example, used English common law and focused on the specific manner in which the bill of ladings signature box was completed in determining whether the bill was a shipowners bill or a charterers bill. The Court refused to consider the possibility that under the Rules themselves, both those parties might well have been the carrier (a position taken in many other countries). This is a disappointing application of restrictive common-law construction, foreclosing a more genuinely international interpretation. IX. The Hamburg Rules

Whereas Hague and Hague/Visby reflect the common law style of precise, detailed drafting, the Hamburg Rules are drafted in the more concise, civilian style. The Hamburg Rules at art. 3 state the obvious, that the Hamburg Rules, being an international convention, should be interpreted to promote uniformity. This goes without saying. Nevertheless, art. 3 will be a reminder to particular nations whose courts might wish to follow a line of decisions completely different from those of the rest of the world. On the other hand, a single, non-mandatory rule of interpretation without reference to other rules of interpretation and their priority seems to be a pious hope rather than a true rule of interpretation. A most peculiar paragraph was added at the end of the Hamburg Rules as Annex II at the instigation of the U.S. delegation and reads as follows: It is the common understanding that the liability of the carrier under this Convention is based on the principle of presumed fault or neglect. This means that, as a rule, the burden of proof rests on the carrier but, with respect to certain cases, the provisions of the Convention modify this rule. The common understanding is not part of the Hamburg Rules. By its ambivalence, it is itself an example of confusing drafting, which neither pleases nor instructs any logical person, whether merchant, lawyer or judge.

266

[2003] 1 Lloyds Rep. 571 (H.L.).

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X.

Conclusion

While civil law codification focuses on concision, common law statutory drafting emphasizes precision. It is not surprising, therefore, that both styles of drafting can be seen in different international conventions. Nor is it surprising that the interpretation of both national laws and international conventions in the civil law world tends to be teleological, directed at identifying and giving effect to the overall purpose of the law or convention in question -- an approach which results in a more open attitude to the sources from which guidance may be sought in the interpretative process (notably, travaux prparatoires). The common law, on the other hand, in which statutes and conventions are often seen as having the primarily remedial purpose of filling gaps in the judge-made law, is traditionally more restrictive and literal in construing the words and phrases of statutes and conventions and less willing to admit external sources in the process of construction. Fortunately, the Vienna Convention on the Law of Treaties, 1969, in force in over ninety countries, has made a major contribution to unifying the principles of interpretation of international conventions, laying down the basic principle of good faith in interpreting treaty terms in the light of their context, object and purpose, and enumerating the kinds of external sources which may be taken into account by the interpreter. Courts and arbitrators around the world must therefore consciously seek to ascertain and abide by a truly international interpretation of the Hague, Hague/Visby and Hamburg Rules and the national statutes enacting them. This type of interpretation requires the actual words of the drafters to be preferred to concepts of the pre-convention law. It also requires a clear preference for an international, over a domestic, construction, in recognition of the purpose of standardization of carriage by sea law which the Rules were designed to promote. Travaux prparatoires should be referred to in grasping the real meaning and object of the provisions to be construed, where any ambiguity persists. Exceptions should be construed narrowly, and a deliberate effort made to preserve the delicate balance between shipper and carrier interests which the Rules aimed to maintain. Often, it may prove helpful to refer to the original, authoritative French version of the Hague Rules, to verify that the true intent of the convention is being respected. Fortunately too, the House of Lords has set an example by liberating itself from the extreme rigidity of its pre-1966 doctrine of stare decisis, and has joined other supreme courts (notably the U.S., Canadian and Australian) in showing greater willingness to re-examine its previous rulings. This more flexible position at least provides some hope of a more international approach eventually becoming predominant in the construction of international conventions, particularly in respect of the carriage of goods by sea. At the same time, as the Judicial Committee of the Privy Council continues to be replaced by national and supra-national supreme courts as the final appellate court in civil matters for more and more countries, vigilance will be required in order to preserve international uniformity of interpretation.

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Prof. William Tetley, Q.C. Faculty of Law, McGill University 3644 Peel Street Montreal, Quebec Canada H3A 1W9

Tel.: (514) 398-6619 (office) (514) 733-8049 (res.) Fax: (514) 398-4659 E-mail: william.tetley@mcgill.ca Website: http://tetley.law.mcgill.ca