International maritime law
Developing a comprehensive third-party liability convention
Patrick J. S. Griggs CBE
Former President, Comité Maritime International
To David in recognition of the outstanding way in which he has spread knowledge of maritime law to all corners of the world.
The quest for uniformity
In the first 110 years of its existence the CMI has taken enormous strides towards the ultimate goal of uniformity of private international maritime law in all its aspects. When the CMI started its pioneering work, its initial target was the creation of a universal maritime code. It was quickly realized that this would be an impossible task. Thereafter the process has necessarily been piecemeal and has produced numerous international conventions, rules, codes, model laws and guidelines. Many of these instruments have been the work of the CMI alone but, since the 1960s, various UN agencies have taken over much of the responsibility for seeking uniformity. Very few aspects of the shipping trade have escaped attention and analysis.
The theory is that international conventions will only be introduced in areas where uniformity is likely to bring advantages. In order to succeed, the proposed regime must not clash too violently with the domestic law of the countries involved in seeking uniformity. Where clashes are perceived at the drafting stage, rights of reservation may need to be inserted in the instrument in respect of the offending provisions. This will mean that states can exercise the right of reservation and national legislatures can – in the implementing legislation – adopt their own provisions. This process has served to preserve the form of international uniformity but sometimes at the expense of uniformity of substance. History tells us that even though a convention or other instrument may be enthusiastically embraced by the delegates to an international drafting conference, this does not guarantee that it will get the support of a sufficient number of states in order to meet its entry into force requirements. Perceived clashes with domestic law, unexpected hostility from national vested interests, lack of legislative time or general inertia may lead to the failure of an attempt at unification.
Some areas of maritime law have proved to be more obvious candidates for uniformity than others. For example, there were obvious advantages to establishing uniformity in the law relating to salvage. Most salvage services are rendered on the high seas and therefore outside the jurisdiction of any national maritime court and are likely to involve salvors and salved property of different nationalities. International rules in relation to salvage are unlikely to create problems within the domestic law of any country considering ratification of a salvage convention. This probably explains why salvage was the first subject to be tackled by the CMI and why the 1910 Salvage Convention1 has been ratified or acceded to by no less than 78 states. Even the 1989 Salvage Convention2 – which replaces that of 1910 – has now been ratified or acceded to by 54 states.
By way of contrast, the International Convention relating to Stowaways 1957, has only been ratified or acceded to by 10 states and has never entered into force. This may be because the problem of stowaways is not perceived as a major one or because most countries have their own (often tough) methods of dealing with stowaways and do not see the necessity for an international solution.
It is noteworthy, however, that not all uniformity projects produce a convention. Thus, when the CMI was considering the possibility of achieving uniformity in relation to acts of piracy and acts of maritime violence, it quickly became apparent that an international convention would not be appropriate because of the probable clash with national criminal codes. In those circumstances, it was decided to downgrade the exercise and simply produce a model national law which would be available to guide national legislatures when addressing these two linked problems.
Conventions, because of the time which they take to progress from being just a good idea in theory to becoming a working convention, are often out of date by the time they come into force. A convention can be amended by a protocol or replaced by a new convention, but the process of amendment is often as time consuming as the creation of the original instrument. Different groups of states may become parties to different versions of a convention to the detriment of the twin goals of uniformity and commercial certainty. Perhaps the best example of this problem can be seen in the area of limitation of liability where there are no less than four extant Conventions (1924,3 1957,4 19765 and the Protocol of 19966) any one of which may be in force and applied by national courts.
1 Convention for the Unification of Certain Rules of Law Relating to Assistance and Salvage at Sea, 1910.
2 International Convention on Salvage, 1989.
3 International Convention for the Unification of Certain Rules Relating to the Limitation of the Liability of Owners of Sea-Going Ships, 1924.
4 International Convention Relating to the Limitation of the Liability of Owners of Sea-Going Ships, 1957.
5 International Convention on Limitation of Liability for Maritime Claims, 1976.
6 Protocol of 1996 to amend the Convention on Limitation of Liability for Maritime Claims, 1976.
The subject matters chosen for international conventions have – since the early days – been driven by events. Thus, the Civil Liability Convention (1969)7 came into existence as a direct consequence of the Torrey Canyon incident. This disaster demonstrated that if innocent victims of an oil spill were to be properly compensated it was necessary to have an international agreement which imposed liability on the shipowner without proof of fault and also provided a means by which adequate compensation for the victims could be assured. This Convention was new in concept in four respects. First, the owner of a ship was to be liable for oil pollution damage regardless of fault. Second, the Convention identified the type of pollution damage in respect of which compensation was to be paid. Third, the Convention provided that the shipowner might limit his liability – in respect of an incident – to a special oil pollution compensation fund calculated by reference to the ship’s tonnage. Fourth, and finally, the Convention imposed an obligation on the shipowner to maintain insurance or other financial security up to the amount of the limit of liability to cover his liability for pollution as defined in the Convention. The Civil Liability Convention was the first of the ‘all inclusive’ type of convention which dealt with liability, compensation, limitation of liability and evidence of financial security.
Anyone who has practised in the maritime law field will know that, because of the piecemeal approach to unification, there is often a lack of consistency in the terminology used in different conventions which tackle the same basic issue. Perhaps the most interesting example of this is the subtle differences between the definitions of conduct barring the right to limit liability which appear in the 1976 Limitation Convention and in the Hague–Visby Rules,8 the Hamburg Rules9 and the amended Warsaw Convention on the Carriage of Passengers by Air.10 Additionally, conventions may inadvertently overlap. For example, the 1976 Limitation Convention provides in Article 7 that the shipowner may limit his liability – in respect of claims for loss of life or personal injury to passengers – to a global amount calculated by reference to the number of passengers which the vessel is certificated to carry. This provision appears to conflict with the Athens Convention 1974,11 which provides in Article 7 that the shipowners’ liability to passengers in respect of death or personal injury is limited to 46,666 SDR per passenger – a per passenger limit, as opposed to a global fund.12
One could go on citing instances where conventions overlap or conflict. Indeed, as more matters come to be the subject of separate conventions, so the opportunities for conflict and overlap will multiply.
7 International Convention on Civil Liability for Oil Pollution Damage, 1969.
8 International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, 1924 as amended by the 1968 Visby Protocol.
9 United Nations Convention on the Carriage of Goods by Sea, 1978.