Transcript Towards an E-maritime law?

Towards an €-maritime
(contract) law?
Pablo Constenla Acuña
Is there a room for an EU maritime law on its
own?
Public law: regulation of maritime safety.
Sulphur contents in Directive 2005/33/EC.
Proposal to reduce greenhouse effects.
Prevention of pollution: ERIKA I, ERIKA II, HNS Convention ratification,
Directives 2004/35/CE and 2005/35/CE and Decision 2005/667/JHA.
Competition matters.
Council Regulation (EC) No 1419/2006 of 25 September 2006 lays down
detailed rules on maritime transport and includes cabotage and tramp services.
ECJ Judgment C-83/13 extends the free provision of services even if the vessel
is flagged in a third State provided that the company is national in an EEE
country.
Complexity
And… private (contract)
maritime law?
Several parties
involved
Forum shopping
- outflagging
Presura by the
players
-
But… Common European Transport Policy (CTP)
PECL and DCFR
Formation, validity, interpretation and content of contracts;
Performance of obligations and remedies of non-performance;
Content of specific contracts and the rights and obligations arising from them;
Private law rights and obligations that do not arise from a contract (i.e. unjustified enrichment
and damage caused to another); and
Matters of moveable property: acquisition and loss of ownership trust law.
HOWEVER,
Shipping contracts are concluded in an urgent manner and not much time can be spent.
Past experience (FIATA Model Rules96 and UNCTAD/ICC Rules 1992)
is not stimulating.
CHOICE OF LAW
Difficulties in ascertaining foreign law.
Duty to prove that foreign law supports the submissions.
Problems with the foreing court: has it jurisdiction? ECJ
Judgment C-71/83.
Particular matter: Rome I Regulation and the Rotterdam
Rules.
Scope of application or conflict rule?
Article 5.1 Rome I Regulation
To the extent that the law applicable to a contract for the carriage
of goods has not been chosen in accordance with Article 3, the law
applicable shall be the law of the country of habitual residence of the
carrier, provided that the place of receipt or the place of delivery or the
habitual residence of the consignor is also situated in that country.
If those requirements are not met, the law of the country where
the place of delivery as agreed by the parties is situated shall apply.
Article 5.1 Rotterdam Rules
Subject to article 6, this Convention applies to contracts
of carriage in which the place of receipt and the place of
delivery are in different States, and the port of loading of a sea
carriage and the port of discharge of the same sea carriage are
in different States, if, according to the contract of carriage, any
of the following places is located in a Contracting State:
- The place of receipt;
- The port of loading;
- The place of delivery; or
- The port of discharge.
Mandatory and uniform system:
EU AND the world
International Agreements concluded by the EU have
preference over EU secondary law and Member States
national law.
EU institutions are competent to regulate EU transport.
Article 90 TFEU: the objectives of the Treaties shall, in matters governed by
this Title, be pursued within the framework of a common transport policy.
So, why the EU did not ratify the private maritime law
conventions yet?
Problems following the non-ratification
Increase of “forum shopping”.
Conflicts between Member States’ obligations both to an
international Convention and to the Community.
i.e. Article 55 of the French Constitution.
Legal conflict between International Agreements concluded
by the EU and the EU secondary law.
A good current example
Obstacles to intermodal transport:
the lack of a coherent network of
modes and interconnections, the lack of technical interoperability between and
within the modes, a variety of regulations and standards for transport means, datainterchange and procedures.
The law should be helpful:
Multimodal contract as a sui generis contract (2005 Proposal)
Two competing international legal regimes
Need for a uniform system (2009 Report)
The Rotterdam Rules? A truly multimodal regime?
Conclusion
The EU private maritime law passes
through the connection with the world
and both the unification and uniformity of
the law.
The debate EU vs. the world or
EU
Commission vs.
IMO/UNCITRAL/CMI
seems not to be the right
way and should not go ahead.