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Uniformity of International Private Maritime Law - The Pros, Cons and Alternatives to International Conventions - How to Adopt an International Convention

(Final version published in (2000) 24 Tul. Mar. L.J. 775-856)

Copyright
William Tetley

(Not to be used without permission and attribution -
Email: william [dot] tetley [at] mcgill [dot] ca)

Prof. William Tetley, Q.C.(*)

INDEX

I. Preface
 

II. Introduction
 

III. Classic Definitions of International Law
 

IV. The Defects in the Classic Definitions of International Law
 

V. New Definitions of International Law
 

VI. The New Definitions of International Maritime Law
 

VII. Useful International Private Maritime Law Conventions
 

VIII. The Lack of Uniformity in International Private Maritime Law Conventions
 

IX. The Component Parts of International Maritime Law
 

X. The Particular International Origins, Sources and Nature of Maritime Law
 

XI. Useful Alternatives to International Private Maritime Law Conventions

        1) Introduction
        2) Model Rules
        3) Standard forms
        4) Standard terms
        5) National statutes of international stature
        6) International judicial cooperation - the "Maxwell order"
        7) Lex mercatoria - lex maritima
                a) The UNIDROIT Principles of International Commercial Contracts 1994
                b) The Principles of European Contract Law 1998
                c) International commercial arbitration

XII. The Advantages of Uniform International Private Laws

        1) Certainty and predictability of result
        2) Ease in the determination and application of the law to be applied
        3) Fairness
        4) Order
        5) Economic development
        6) Procedural effectiveness
 

XIII. The Disadvantages of Uniform International Private Laws

        1) Offences to fundamental principles of national public order/policy
        2) Offences to fundamental national principles of justice and social order
        3) Unnecessary international laws
        4) Civil law/common law styles of drafting and terminology
        5) Loss of cultural diversity
 

XIV. What Divides Us

        1) Different systems of justice - distributive v. corrective justice
        2) Different political and social objectives
        3) Different political systems
        4) Different standards because of differences in national wealth
        5) Transnational interests, shipowners, cargo insurers, P&I Clubs, freight forwarders
        6) The refusal of some states to give up their legislative sovereignty or authority over some maritime matters
        7) The indifference of some governments towards international unformity of maritime laws and even to maritime law, because of their preoccupation with national matters and in the international field, with International Public Law
        8) Inertia and lack of vision and courage
 

XV. How to Write a National Law or an International Convention

        1) The appropriate government or international institution with political and legislative authority decides on the need for, and the general form of, the law
        2) Preparation of "position/white papers"
        3) Appending a draft law to the white paper
        4) Recourse to experts
        5) Avoiding alternatives
        6) Public consultation
        7) Similar principles for Non-Governmental Organization (NGO's)
        8) Regional conventions
 

XVI. How Not to Write a Law or an International Convention
 

XVII. A Shortcut to International Legislation - The "Tacit Acceptance Procedure" of IMO

        1) The traditional "express acceptance procedure"
        2) An innovation: the "tacit acceptance procedure"
        3) The I.S.M. Code: crowning glory of the tacit acceptance procedure
 

XVIII. International Law Requires Compliance, and therefore Requires an International Executive Authority
 

XIX. A Useful Solution to Lack of Uniformity of International Law: Uniform Conflict of Law Rules
 

XX. Conclusions - Often in Error, Never in Doubt
 

Postscriptum
 

Appendix "A" - Examples of Good International Maritime Conventions
 

Appendix "B" - Glossary of Internatonal Conventions
 

Appendix "C" - Examples of Good International Law
 

Appendix "D" - Examples of Good Model Laws, Conventions and Restatements


Uniformity of International Private Maritime Law -
The Pros, Cons and Alternatives to International Conventions -
How to Adopt an International Convention

Prof. William Tetley, Q.C.

(Final version published in (2000) 34 Tul. Mar. L.J. 775-856)

 Preface
 

It is, of course, very flattering and exhilarating to give a lecture(1) in one's own name. It also fills one with foreboding. A friend in the same position recently described such a lecture as a "pre-mortem".
 

But my predominant feelings again this year are of appreciation of the great honour conferred on me by the Tulane School of Law, this remarkable maritime law faculty, with its traditions of civil law, common law, and maritime law.
 

Nowhere else in the world does one find the three traditions so balanced and intertwined, and yet so distinctively preserved.
 

I am especially indebted to Dean Edward Sherman of the Tulane Law School, to Professor Robert Force, Director of the Tulane Admiralty law Institute and Robert B. Acomb, Jr., Chairman of the Permanent Advisory Board for the Institute, for their support and kindness.
 

I have been lecturing at Tulane since 1982 and each year the experience is richer no doubt as the quality of the students has risen. All boats rise with the tide and legal education has steadily risen over the years in America, but Tulane's rise has been spectacular and I have been not only a witness to it but also one of its principal beneficiaries. Herewith my especial thanks.
 

May I add that I regret the recent, sudden, and very unfortunate death of Geoffrey Brice, Q.C., a delightful fellow, a very competent and dedicated scholar and practitioner, as well as a comrade-in-arms, who gave so much to Tulane by his teaching and presence. It is interesting to note that Geoffrey Brice pleaded the first Mareva injunction. It was Geoffrey, and not Lord Denning, who invented the procedure, which has revolutionized the shipping world.(2)
 

II. Introduction
 

One might think that the law particularly between nations and citizens of various nations should be uniform in order to facilitate relations between states and the relations and commerce between nationals of different states. Yet there are disadvantages along with the advantages to international uniformity. Nor must one aspire to uniformity in a broad sector or in the short run. Legislation and change take time. There are mountains to move.
 

I hope in this paper to take as objective a look as possible at uniformity in international private maritime law and make suggestions for the future.
 

In particular I hope to judge the advantages and disadvantages of uniformity and to suggest alternatives to international conventions, by model laws, restatements, standard contract forms and terms and even by those old but reliable chestnuts, the lex mercatoria and international conflict of laws conventions and methodologies. For examples of some good international conventions on commercial law, see Appendix "C". For examples of some good model laws, restatements and international conflict of law conventions, see Appendix "D".
 

Finally I hope to suggest methods to adopt international conventions and in particular the tacit acceptance procedure.
 

III. Classic Definitions of International Law
 

Before considering uniformity of international maritime law it is important to "clear the decks" and arrive at a definition of international law. In particular, one may ask oneself if the classic definitions are accurate today. (In particular, the term "private international law" has always been a puzzle to me, my students and practitioners, and a subject of grumbling to academics.)
 

An example of the classic definition of international law is given in Mozley &amp Whiteley Law Dictionary, a well-known British law dictionary:
 

"International law (Lat Jus inter gentes)

International law is divided into two branches:
1. Public international law, which comprises the rights and duties of sovereign States towards each other;
2. Private international law, which comprises the rights and duties of the private individuals of different States towards each other, and is mainly involved with questions as to the particular law governing their transactions. This is also called the 'conflict of laws'."(3)

On the other hand, a somewhat wider, more contemporary definition is given in the premier American law dictionary - Black's Law Dictionary:
 
"international law. The legal principles governing the relationships between nations; more modernly, the law of international relations, embracing not only nations but also such participants as international organizations, multinational corporations, nongovernmental organizations, and even individuals (such as those who invoke their human rights or commit war crimes). Also termed public international law; law of nations; law of nature and nations; jus gentium; jus gentium publicum; interstate law; law between states (the word state, in the latter two phrases, being equivalent to nation or country)."
 

"private international law. International conflict of laws; legal scholars frequently lament the name 'private international law' because it misleadingly suggests a body of law somehow parallel to (public) international law, when in fact it is merely a part of each legal system's private law."(4)


 

IV. The Defects in the Classic Definitions of International Law
 

The classic definitions of international law(5) can be summarized as follows:
 

"public international law, is concerned with the legal relationships between sovereign nations"(6);

"private international law" or "conflict of laws" is concerned with the legal relationships between private parties of different sovereign nations and is concerned with choice of law or jurisdiction or recognition of foreign judgments."(7)

The above definitions suffer from what I consider to be three major defects:
 

1) No nation today is totally sovereign, because of various treaties and conventions whereby the sovereignty of the signatories has been voluntarily diluted. National sovereignty has also been lessened by the membership of States in institutions or federations such as the United Nations and the European Union and the North Atlantic Treaty Organization (NATO) - the three most important examples.
 

Thus the term "sovereign" is no longer useful to a definition of public or private international law. ("Magna Charta is such a fellow, that he will have no sovereign" Sir Edward Coke, 1552-1634).
 

2) Many nations, too, are themselves federations or confederations, such as the United States of America, Canada, Germany, Switzerland and now the United Kingdom. Here again, sovereignty has been renounced in part and the component political subdivisions in the federation have sovereignty over certain matters and are not sovereign at all in others. This is the case in respect of the fifty American states, such as New York and California, in the United States, which are States for purposes of private international law (or conflict of laws) in the matters over which they have authority under the U.S. Constitution. The same is true in the case of the cantons of Switzerland and the ten provinces and three territories of Canada.
 

Thus the term "nation" is no longer always appropriate to a definition of public international law or private international law and should be replaced by the term "State".
 

3) A distinction must be made as well between "private international law" or "conflicts of law" (the rules to choose the appropriate law or jurisdiction or to recognize foreign judgments) and what I call "international private law",which concerns the relationships between private parties of different States.
 
 

V. New Definitions of International Law

Transnational Law

American professor and Judge of the International Court of Justice, Philip C. Jessup, devised a much more realistic and all encompassing definition of international law as being "Transnational Law" or:(8)
 

"[A]ll the law which regulates actions or events that transcend a nation's frontiers.[I]t includes both civil and criminal aspects, what we know as public and private international law, and it includes national law both public and private. Transnational situations may involve individuals, corporations, states or other groups."


Professor Jessup's definition of international law, however, still relies on the term "nation", and it does not clarify what is "conflicts of law", what is "international private law" and what is "international public law".

In the light of the above observations as to the terms nation, sovereignty and conflicts of law, I have divided the definition of international law into three as follows:  

"International Public Law" (or "Public International Law") concerns the legal relationships between States.(9)

"Private International Law" (or "Conflict of Laws") is the collection of rules used to resolve disputes as to choice of law, choice of jurisdiction and recognition of foreign judgments between private parties subject to the laws of different States.

"International Private Law" concerns the legal relationships between private parties of different States.

VI. The New Definitions of International Maritime Law

Based on the above definitions, I propose the following new definitions of international maritime law:  

"International Public Maritime Law" (or "Public International Maritime Law") concerns the legal relationship between States in respect of maritime matters.

"Private International Maritime Law" (or "Conflict of Maritime Laws") is the collection of rules used to resolve maritime disputes as to choice of law, choice of jurisdiction and recognition of foreign judgments between private parties subject to the laws of different States.

"International Private Maritime Law" concerns the legal maritime relationships between private parties of different States.
 

VII. Useful International Private Maritime Law Conventions

There are many excellent international private maritime law conventions, which have been brought into existence by the CMI, UNCITRAL, UNCTAD AND IMO, as can be seen from Appendix "A", but many conventions are not in force or are only in force for a few major shipping and trading nations.
 

VIII. The Lack of Uniformity in International Private Maritime Law Conventions

The lack of uniformity due to the lack of adoption of major international maritime law conventions can be seen from Appendix "B". The document sets out the international maritime law in respect of twelve major sectors - carriage of goods, collision, pollution etc. - and compares the adoption of those conventions by five representative shipping nations the United Kingdom (common law), Canada (common law), France and China (civil law origins but recent common law assimilations), and the United States (common law with civil law origins).

The lack of uniformity in respect of international maritime law is disheartening for those who believe in uniformity, particularly in comparison with air law, which started far behind but has now gone far ahead of maritime law.
 

IX. The Component Parts of International Maritime Law

That some maritime nations have failed to adopt many maritime law conventions is also surprising and upsetting, because maritime law is particularly adapted to international uniformity, as its component parts are very international.

The most cited summary of the component parts of international law is that found in art. 38(1) of the Statute of the International Court of Justice.(10) This provision requires the Court, in deciding disputes in accordance with international law, to apply:
 

"(a) international conventions, whether general or particular, establishing rules expressly recognised by the contesting states; (b) international customs, as evidence of a general practice accepted as law; (c) the general principles of law recognised by civilised nations; (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law."


May I suggest the following component parts for international private maritime law: a) international conventions and treaties; b) international model laws; c) standard form contracts; d) standard terms; e) international custom; f) the lex maritima, being part of the lex mercatoria; g) doctrine - writings of leading authorities on the law; h) decisions of international courts and international arbitral tribunals; i) decisions of national supreme and other courts and arbitral tribunals of international reputation.
 

X. The Particular International Origins, Sources and Nature of Maritime Law

The failure to adopt international maritime conventions is particularly galling, as well, because maritime law, by its very origins, sources and nature, is especially adapted to uniformity, owing to its origins, nature and purposes, which are all international:

1) Maritime law, from its very beginnings has been international law rather than national law and was declared to not be a part of Roman law, which was land law. The Emperor Antoninus (138-161 A.D) said that sea law, was the law of ancient Rhodes except as it may have been specifically legislated upon in Rome: "I, indeed, am Lord of the world, but the law is lord of the sea. Let it be judged by Rhodian Law, prescribed concerning nautical matters, so far as no one of our laws is opposed."(11)

2) A lex maritima, a part of the general, customary mercantile law, or lex mercatoria, of the Middle Ages, has evolved over the centuries. It began with the Rhodian law or even earlier and was added to over the ages. Rome, Byzantium, the Basilica, the Italian city states, the Rôles of Oléron, the Assises of Jerusalem, the Hanseatic League, the Consolato del Mare, Doctors' Commons, Le Guidon de la Mer, L'Ordonnance de la Marine, Le Code de Commerce, etc. all made a contribution. This rich and ancient legal heritage has become the lex maritima, and is the source of our modern "general maritime law".(12)

In consequence maritime law in Western society has a common international origin - the civil law traditio(13) - and today is strongly influenced by the common law, as well as by the rapidly developing "modern lex mercatoria".(14)

3) Ships, seamen, passengers, merchants and cargo of all nations are subject to the same seas, the same weather, the same climate, the same natural elements, the same perils, and the same ocean routes. Thus many maritime law disputes arise in similar contexts and circumstances. In addition, the facts which maritime law must address in resolving such disputes are often similar, regardless of differences in nationality, domicile, residence or the governing law of the ship, the shipowners, the charterers, the passengers, the master or the crews.

4) Most national maritime law crosses international borders. In other words, national maritime law is usually international law in its application. For example, the national law governing contracts of chartering or of carriage of goods is international, because the contract, although made in one country, is necessarily for the whole voyage and usually covers carriage to one or more foreign countries.

5) Ships are international because they easily change nationality; in fact, flags of convenience, bareboat chartering "in" and "out" and double flagging add to the international nature of shipping, as does the operation of shipping companies with offices and subsidiaries in different countries.(15)

6) Ships, shipowners, charterers, crews and passengers, although citizens of different states, are often involved together in the same international voyage or common venture.

7) Shipping is international, because ships and crews have a common international science and language, so that crewmembers and at times whole crews are quite interchangeable.

8) The various trades and professions involved in the shipping industry (owners, charterers, shippers, shipbuilders, classification societies, insurers, brokers, freight forwarders and average adjusters) have international organizations to defend and promote their respective interests.(16)

9) Merchants have a common international language and terminology (e.g. the Incoterms(17) CIF, FOB, etc.) which lends itself to "internationality".

10) Maritime law today includes a host of international conventions and model laws to which many States are party and which therefore apply to ships of different flags and to shipowners, charterers, shippers and consignees of different nationalities, domiciles and residences.(18)

11) Shipbuilding, ship sales, carriage of goods and ship chartering are increasingly effected using standard-form contracts with legal terms understood internationally, including bill of lading and charterparty forms.(19)

12) Marine insurance forms, policies and terms, (hull, cargo and P. & I., as well as reinsurance), apply internationally, to ships of many different flags and cargoes, having many different origins and owners.(20) The Marine Insurance Act, 1906(21) of the United Kingdom is the mother of most national marine insurance act.(22) and is frequently a guide to marine insurance law in the United States, which has no federal marine insurance act.(23)

13) The jurisdiction of admiralty courts around the world tends to cover the same types of maritime disputes, and is often expressed in similar legal terminology.(24) Typically, this jurisdiction is international, in that it may be exercised regardless of the nationality of the ships or the nationality, domicile or residence of the parties to the disputes.(25)

14) Admiralty procedures are similar throughout the world.(26) For example, maritime pre-judgment security procedures apply to all ships, regardless of nationality. They are also are remarkably uniform. Common law jurisdictions offer the action in personam, the action in rem and the Mareva injunction.(27) Civil law jurisdictions provide the action in personam and the saisie conservatoire(28) (the latter also available in the U.S. as the maritime attachment.(29)

15) Maritime legal disputes arising anywhere in the world are increasingly decided by "alternative dispute resolution" mechanisms (particularly arbitration, but also conciliation and mediation). The disputes are often entrusted to international arbitral institutions (e.g. the Society of Maritime Arbitrators, the American Arbitration Association, the London Maritime Arbitration Association, the Chambre Arbitrale Maritime de Paris, the International Chamber of Commerce). A significant body of international "arbitral jurisprudence", part of the modern lex maritima/mercatoria, is developing, especially within these institutions, and is being applied by maritime arbitrators internationally.(30)
 

XI. Useful Alternatives to International Private Maritime Law Conventions

1) Introduction

Uniformity in international maritime law is not exclusively dependent upon the adoption of international conventions and protocols and their subsequent acceptance by States. Many other tools have come into existence over the years, which contribute substantially to the harmonization of international seagoing commerce and the norms governing it around the world. Model rules, the UCP 500, standard-form contracts of charterparty, towage and salvage, marine insurance policies and marine reinsurance treaties, and a plethora of standard clauses in various maritime contracts - all assist in securing such harmonization of law.(31) Certain national statutes, which have either been copied by legislation in other lands or consciously referred to by courts in other countries, have taken on a quasi-international stature. Creative new court procedures have also contributed to the standardization. Finally, there is the so-called "modern lex mercatoria", which is beginning to be unofficially codified and to develop its own case law ("jurisprudence" in civilian terminology), particularly in international commercial arbitration.

2) Model Rules

Model rules include various documents produced by the CMI, notably: a) the Lisbon Rules 1987 (Draft Rules for the Assessment of Damages in Maritime Collisions;(32) b) the CMI Uniform Rules for Electronic Bills of Lading 1990;(33) c) the CMI Uniform Rules for Sea Waybills 1990;(34) d) the York/Antwerp Rules 1994;(35) (and earlier versions); and e) the Principles of Conduct for Classification Societies 1998.(36) Mention should also be made of the Voyage Charterparty Laytime Interpretation Rules 1993 (Voylayrules '93).(37)

Worldwide ocean trade today would be virtually unthinkable without uniform rules governing documentary credits, a mechanism essential to the buyer/seller relationship in the international sale of goods and to the carriage of such goods under negotiable bills of lading. The International Chamber of Commerce (ICC) has occupied this vitally important field with its Uniform Customs and Practice for Documentary Credits (UCP 500) of 1993.(38) The UCP 500 is an excellent example of a modern, international and codified lex mercatoria, with a direct bearing on contemporary lex maritima. Roy Goode has commented that this compilation of modern banking practices, which enjoys near universal acceptance, "... will readily be treated by the court as impliedly incorporated into the various documentary credit contracts as established usage."(39)

3) Standard forms

Standard forms of charterparty have been in use for years in maritime commerce, both domestic and foreign, in virtually every country on the globe. The world is greatly indebted to the Baltic and International Maritime Council (BIMCO(40) and to the Association of Ship Brokers and Agents (U.S.A.), Inc. for so many of these forms, which have helped standardize the rules of chartering everywhere. Basic forms of bareboat charterparty are. Barecon "A"(41) and "B"(42) and Barecon '89(43) Time charters are frequently evidenced by forms such as NYPE 1946(44) and NYPE '93(45) Baltime 1939(46) and Asbatime 1981.(47) Voyage charterparties are signed on a wide variety of forms, including, among many others, Gencon 1922, 1976 and 1994(48) and Asbatankvoy 1977.(49)

Standard-form booking notes and bills of lading, such as "Conlinebooking",(50)"Conlinebill"(51) and "Combiconbill"(52) of BIMCO, have rendered a similar service in respect of ocean bills of lading and related documentation.

In marine insurance, the old Lloyd's SG form(53) and the more recent Lloyd's MAR form(54) have in effect harmonized to a great extent the rules governing marine insurance. A similar standard form is the "Companies Marine Policy"(55) of the former Institute of London Underwriters (ILU), which merged in 1998 with the London Insurance and Reinsurance Market Association (LIRMA) to form the "International Underwriting Association of London" (IUA).

The Lloyd's Standard Form of Salvage Agreement 1995(56) (formerly "Lloyd's Open Form") is a mainstay of international salvage law. Ship sale contracts are frequently concluded on the Norwegian Saleform 1993.(57)

4) Standard terms

Maritime commerce and maritime law have also achieved considerable standardization thanks to the universal usage of a great number of standard terms and clauses in various types of contract. Probably the best known of these are the INCOTERMS of the International Chamber of Commerce (ICC), the most recent versions of which are those of 1980, 1990 and 2000.(58) Terms such as "F.A.S.", "F.O.B.", "C.I.F." and "C.F.R.", with the clear definitions of each provided by the ICC, are used and understood by buyers and sellers, shippers, carriers and consignees, in every nation.

Marine insurance law features a veritable panoply of standard clauses understood by underwriters, owners, brokers, lawyers and judges around the globe. Among them are: the (former) Institute of London Underwriters "Institute Clauses". These include the Institute Time Clauses Hulls 1983/1995,(59) the Institute Voyage Clauses Hulls 1995(60) and the Institute Cargo Clauses "A",(61) "B"(62) and "C" (63) 1982. Their repetition in policy after policy has also brought the law of marine insurance into a remarkable degree of certainty and uniformity internationally. Other such truly international provisions are the Inchmaree Clause(64) and the Free of Particular Average (F.P.A.) Clause.(65)

Bills of lading too incorporate a remarkable number of clauses with standard or near-standard wording, such as paramount clauses,(66) freight and lien clauses,(67) the New Jason clause,(68) the both-to-blame collision clause,(69) the superseding clause,(70) the demise, or identity of carrier, clause,(71) the Himalaya clause(72) and general liberty clauses (e.g. re deviation and deck carriage)(73)

5) National statutes of international stature

From time to time, a statute is enacted in one jurisdiction that is so comprehensive, so clearly drafted and so effective in achieving its purpose, that it not only stands the test of time in the jurisdiction of its first adoption, but gradually begins to radiate influence in other jurisdictions. In maritime law, a clear example of such a "national statute of international stature" is the United Kingdom's Marine Insurance Act, 1906.(74. This act has inspired legislators in other countries like Canada, which in 1993 adopted a virtual carbon copy of the U.K. statute in its Marine Insurance Act.(75) But it has also assisted courts even in countries lacking any national marine insurance legislation (such as the United States), because it is universally considered to be a codification of fundamental (and sometimes ancient) principles governing this historic domain of maritime law.(76)

The Uniform Commercial Code(77) (UCC) of the United States is another example of national legislation frequently looked to by other countries and by Non-Governmental Organizations (NGO's) seeking to modernize commercial law.(78) A third example, in the realm of conflict of laws, is the Swiss Statute on Private International Law 1987,(79) which was referred to by drafters of other national conflicts statutes, such as the Quebec Civil Code 199(80) and the Louisiana Civil Code conflicts provisions of 1991.(81)

6) International judicial cooperation the "Maxwell order"

Courts can also play a significant role in making international private law more uniform. An example is found in the "Maxwell order", which resulted from the bankruptcy of Maxwell Corp., a British publishing company founded by the late Robert Maxwell (who was lost at sea off the stern of his yacht). His debt-ridden company, with 80% of its assets in the United States, petitioned the High Court in England for an "administration order" under the U.K. Insolvency Act 1986.(82) It also petitioned the U.S. Bankruptcy Court for reorganization under the U.S Bankruptcy Code(83) The High Court appointed joint administrators under the Insolvency Act, and the U.S. Bankruptcy Court appointed an examiner under chap. 11 of the Bankruptcy Code.(84) The High Court then deferred to the jurisdiction of the U.S. Bankruptcy Court, to assist in promoting the reorganization, while still retaining its own jurisdiction. The High Court also authorized the U.K. joint administrators to consent to the U.S. court making a "joint agreement approval order", approving an agreement between them and the U.S. examiner. The joint agreement permitted the U.K. joint administrators and the U.S. examiner to investigate the debtor's assets and liabilities, to exchange information and to harmonize judicial proceedings relating to the case in both countries. To complete these arrangements, the High Court gave the U.S. examiner standing to appear in U.K. proceedings, and the U.S. Bankruptcy Court reciprocated, by conferring standing on the U.K. joint administrators as "parties in interest", permitting them to appear in the U.S. proceedings. The bankrupt's reorganization was greatly facilitated by these innovative judicial measures.

As a tool to facilitate the handling of international bankruptcies, the Maxwell order is indeed a "triumph of international cooperation"(85) which courts everywhere could usefully imitate in complex multinational bankruptcies, including those of shipping lines having assets and liabilities in various jurisdictions.

7) Lex mercatoria-lex maritima

a) The UNIDROIT Principles of International Commercial Contracts 1994

Probably the most significant development in international uniformity of commercial law in the last ten years has been the adoption by UNIDROIT of the Principles of International Commercial Contracts 1994(86) Prepared over a period of fourteen years by a working group comprising respected specialists in contract law from civil law, common law and socialist legal systems, the Principles contain the following clear and lofty statement of purpose, right at the beginning of the text:
 

"The Principles set forth general rules of international commercial contracts.
They shall be applied when the parties have agreed that their contract be governed by them.
They may be applied when the parties have agreed that their contract be governed by 'general principles of law', the 'lex mercatoria' or the like.
They may provide a solution to an issue raised when it proves impossible to establish the relevant rule of the applicable law.
They may be used to interpret or supplement international uniform law instruments.
They may serve as a model for national and international legislators."


The Principles are widely accessible in many languages, including all major European tongues, as well as Chinese, Arabic and Korean, with a Japanese translation in preparation.(87) They are taught in all major law faculties, in both civil law and common law jurisdictions.(88) They have been referred to by national lawmakers in preparing national codifications (including the Netherlands Civil Code 1992,(89) the Québec Civil Code 1994(90) and the new Civil Code of the Russian Federation(91))(92) They provide an actual formulation of norms of the modern lex mercatoria in concrete, black letter wording, which can be cited and argued about by practitioners, and applied by judges, around the world,(93) particularly to fill gaps in the law applicable to transnational contractual disputes and international uniform law instruments. They have thus rendered a tremendous service to the cause of international legal uniformity and are increasingly haled by the international business community as a major contribution facilitating contemporary transnational commerce.(94)

b) The Principles of European Contract Law 1998

The Principles of European Contract Law 199(95) were prepared by the Commission on European Contract Law, chaired by Prof. Ole Lando of the Copenhagen Business School (the Lando Commission). The European Principles are based largely on the UNIDROIT Principles and have made a similar enormous contribution to the harmonization of contract law among the member-States of the European Union.(96) They constitute a regional effort at codifying fundamental rules of contract law which are generally accepted within Europe, in both civil law and common law jurisdictions. They may eventually form the basis of a Common European Code of Private Law.(97)

Like the UNIDROIT Principles, the European Principles can also be used to fill gaps in national law, to interpret international instruments and to inspire lawgivers. They are also available in all the official languages of the European Union and are on the curricula of the principal law faculties. The European Principles are wider in scope than the UNIDROIT Principles, however, in that they apply to domestic and consumer contracts within E.U. States (whose laws are already considerably harmonized within the E.U. Single Market), as well as to contracts between parties in different E.U. States. The UNIDROIT Principles, on the other hand, are designed to operate globally but not domestically, within a market governed by disparate legal and economic regimes.

Both the UNIDROIT and European Principles, expounding transnational principles of contract law, will no doubt leave a mark on international maritime contract law as well, in the coming years.

c) International commercial arbitration

The modern lex mercatoria/maritima is also found in international commercial arbitration, including international maritime arbitration.(98) Slowly but surely, arbitrators, especially those working within the major arbitral institutions in different countries, are developing an international "jurisprudence", or case law.(99) The publication of arbitral awards, which happily is becoming more the norm and less the exception in international arbitral practice, is assisting the growth of this corpus of jurisprudence.(100)
 

XII. The Advantages of Uniform International Private Laws

The advantages of uniformity far outweigh the disadvantages of international law and can be summarized as follows:

1) Certainty and predictability of result

Law in any jurisdiction should be certain and predictable.(101) And individuals and corporations have the right to be subject to law which is clear to them, their legal counsel and to the judges, who may decide a dispute between the parties. Similarly individuals and corporations, when involved in international matters, have the right to be concerned with laws which are clear to lawyers, judges and everyone involved.

In international transactions and torts, as in national transactions and torts, uniformity of international law provides certainty and predictability of result is essential.

It is important, as well, that the parties to an international dispute be treated in the same way, wherever the matter is decided. This is a justified expectation in a civilized society.

2) Ease in the determination and application of the law to be applied

Uniformity of international law avoids all the problems of conflict of laws in the choice of law, in the choice of jurisdiction (and the related problems of forum non convenien(102) and forum convenien(103)) and recognition of foreign judgments.

Uniform international law lends itself to simplicity in the determination and application of the law where a foreign element is involved.(104)

3) Fairness

Uniformity in a society or in an international society is an essential part of justice. That parties in one jurisdiction are treated with same fairness as those in another jurisdiction of the same international society is necessary, if that society is to be just. Lack of uniformity of international law leads to injustice. Justice is fairness in an international society, just as it is in an international society. (John Rawls).

4) Order

"Order" is a basic reason for uniformity of international law. Order is an integral part of the justice of any national or international society. For example, the rules for ships at sea or in national waters when approaching one another should be uniform throughout the world, which is the actual case of the International Collision Regulations for Ships at Sea. It is interesting that La Forest J., speaking for the Supreme Court of Canada in Tolofson v. Jensen(105) said:(106)
 

"While, no doubt, as was observed in Morguard, the underlying principles of private international law are order and fairness, order comes first. Order is a precondition of justice."


5) Economic development

Uniform international law is a boon to international commerce and thereby contributes substantially to creating conditions that foster both national and international economic growth. One of the clearest proofs of this is seen in the European Union, which, since its foundation in 1957, has gradually created a single market in goods and services among its member-States. In the field of direct insurance, including marine insurance, for example, the Second and Third Directives of the Council of the European Union of 198(107) and 199(108) have achieved the harmonization of national legislation across Europe in this important sector of business activity.(109)

It is therefore not surprising that international bodies like UNCITRAL have directed the bulk of their efforts to establishing transnational rules in different fields related to the economy. The Convention on Contracts for the International Sale of Goods 1980 (the Vienna Sales Convention),(110) now in force in 56 States, is among its most successful initiatives.(111) UNCITRAL's model laws (on International Commercial Arbitration 1985,(112) International Credit Transfers 199(113), Procurement of Goods and Construction 1993,(114) Electronic Commerce 1996(115) and Cross-Border Insolvency 1997(116)) are major achievements, as are its legal guides (on Electronic Funds Transfers 1987(117) Drawing Up International Contracts for the Construction of Industrial Works 1988(118) and International Countertrade Transactions 1992(119)). They are attracting attention from national legislators, because they are perceived as offering positive commercial and economic benefits.

UNIDROIT's Conventions on International Financial Leasing 1988(120) and International Factoring 1988(121) are also beginning to contribute to the standardization of national laws in these key economic domains. Much is to be hoped as well from project on Uniform Rules Applicable to Transport, now on UNIDROIT's work programme for the period 1999-2001, as well as from its Preliminary Draft Convention on International Interests in Mobile Equipment 1999(122) and its Protocols,(123) which, inter alia, may provide for international rules governing security interests in aircraft equipment and shipping containers.

The standardization of law is an important pre-condition of economic progress for developing, as well as the developed, countries around the globe.

6) Procedural effectiveness

Harmonized procedural rules as between different States constitute another advantage of uniform international private law. Such transnational rules facilitate the judicial process, making it easier for litigants to assert their rights and remedies. No doubt, this realization has contributed to the international popularity of at least three of the Hague Conventions: a) the Convention Abolishing the Requirement of Legalisation for Foreign Public Documents 1961(124) (in force 62 States), b) the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965(125) (in force in 38 States); and c) the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970(126) (in force in 30 States).

In international commercial arbitration, procedural effectiveness is facilitated by the fact that most major international arbitral institutions have uniform procedural rules, governing the details of how arbitrations referred to them are conducted.(127) Some such bodies also have simplified rules for arbitration of disputes involving relatively low sums of money,(128) as well as special rules for the settlement of disputes by way of mediation and conciliation.(129)
 

XIII. The Disadvantages of Uniform International Private Laws ("Bad laws are the worst sort of tyranny." Edmund Burke, 1729-97))

There are few disadvantages to uniform international private laws, but those that exist should be mentioned:

1) Offences to fundamental principles of national public order/policy ("How long so ever it hath continued, if it be against reason, it is of no force in law." Sir Edward Coke, 1552-1634).

At times, differences in the way nations consider public order or public policy are so great that an international law cannot satisfy even a majority of nations and such a law is unlikely to be adopted internationally. For example, the provisions of the Arrest of Ships Convention, 1999(130) failed to have an open list of "maritime claims" (see art. 1(1)(a) to (v)(131)) or a relevant "sister ship" arrest provisions (see art. 3(2)(132)). In effect the world and the shipping world is not yet ready for world government or universally binding law in many matters.

Nevertheless advantages do arise from international conventions that come into force for only a very few States or that do not come into force at all. Those conventions can be a guide for future international law or for future national law. Thus the Arrest of Ships Convention 1999 has new provisions (art. 6(1)(a) and (b)) permitting courts to require parties arresting ships to provide security for damages which such action may cause the defendant.(133) These rules can and will be a guide for the future, although the Convention is unlikely to come into force for this and other reasons.

2) Offences to fundamental national principles of justice and social order

National ideas of justice, social purpose or public order/policy may be so different that the world may not be ready for uniform laws. Thus the Merchant Seamen Compensation Acts, such as Canada's,(134) reflecting "distributive justice", are incompatible with the "maintenance and cure" principle of the general maritime law, reflecting U.S. "corrective justice".(135) Thus some international laws are far from ready for international adoption.

3) Unnecessary international laws ("Il est nécessaire de ne pas légiférer, quand il n'est pas nécessaire de le faire." Montesquieu, 1689-1755)

International laws may be unnecessary and even harmful in respect of some matters where freedom of contract and custom and standard forms and standard conditions are already prevalent. For example, an international convention on chartering or on towage would only restrict a system of contracting, which is presently flexible and working well. Chartering and towage do not need to be regulated by an international convention, particularly because the parties to such contracts tend to be of relatively equal bargaining strength, and because standard-form contracts of chartering and towage are in widespread use around the world.

Similarly, the need for an international convention on offshore mobile craft appears doubtful, at least for the present, as legal problems relating to the operation of such craft tend to be local or regional, rather than international, and so lend themselves more readily to national legislation.

4) Civil law/common law styles of drafting and terminology

Many nations too are locked into either the civil law or the common law way of thinking, which prevents them from accepting the others system's style of drafting, and interpretation/construction of laws. In such cases, an international law which does not attempt to satisfy both the civil and the common law styles of drafting may be very difficult to adopt internationally.(136)

The Hague/Visby Rule(137) are written in common law style and the Hamburg Rules(138) in civilian style.(139) This has helped to prevent the adoption of the Hamburg Rules.

Of course, it would also have been better had the Hamburg Rules been an amendment to the Hague/Visby Rules. But adoption of the Hamburg Rules was driven by the Soviet East Bloc at the time, which controlled the majority of the voting members at the Assembly of UNCITRAL in Hamburg in 1978. This Bloc wanted a Carriage of Goods by Sea Convention which, they believed, should be fairer to shippers and emerging nations, while the shipowning nations, represented by the Comité Maritime International, were much more protective of the interests of shipowners and promoted Hague/Visby. (Nevertheless the Hamburg Rules 1978 forced the adoption of the Hague/Visby S.D.R. Protocol of 1979.(140) The threat of the Hamburg Rules 1978 also caused many Hague nations, such as Japan,(141) and perhaps even Canada,(142) to adopt the Visby Protocols of 1968 and 1979.)

Good international private law in consequence should be rewritten to satisfy both civil law and common law sensibilities and drafting styles. The UNIDROIT Principles of International Commercial Contracts 1994(143) is an example of such sensitive drafting. Another is the Vienna Sales Convention 1980,(144) which "...seeks to maintain a delicate balance between the contrasting attitudes and concepts of the civil law and of the common law...."(145) Conversely, the fact that the Arrest of Ships Convention 1999(146) takes account of only legal ownership of vessels, without including any reference to "beneficial" ownership, may render its acceptance in the United Kingdom and other Commonwealth countries more problematic, because of the importance of that common law concept in the national maritime law of those jurisdictions.(147)

5) Loss of cultural diversity

International standardization of law can also be a disguised form of cultural imperialism, where one vision of law becomes the new, international vision, and gradually marginalizes or eliminates the other.

Uniformity in international law crosses not only national borders but cultural boundaries, fusing different cultures into a single amalgam or, alternatively, in obliterating one of those cultures. In my view, it is very worthwhile for our society to defend the civil law in Louisiana and in Quebec against the pervasive power of the common law (in the case of Louisiana, of the 49 other American states and the federal government, and, in the case of Quebec, of the nine common law provinces and the federal government of Canada). Is the cultural diversity worth saving? I believe so. One only knows one's own law if one knows another to compare it with. (The same is true of religions and languages.) The civil law is useful to Canada and to the United States.

Similarly, the civilization of the common law which is taking place in the European Union, particularly by a proposed European civil code,(148) could be disastrous to the common law and other systems in Nordic countries, let alone to the diversity in law amongst, for example, France, Germany, Italy and Spain.

In his book Le droit comparé,(149) Pierre Legrand(150) warns of this danger with specific reference to the current movement towards European "legal integration". He shows how the differences between the civil law and the common law (Europe's two historic legal traditions) reflect deep-seated underlying differences in culture and epistemology.(151) Civil law thinking is highly structured and systematized. Common law thinking, on the other hand, rejects systematization and takes pride in its pragmatic flexibility rather than in logical consistency.(152)

In my view, cultural diversity can be maintained within an international statute by tolerance of both sides of the obligatory prescriptions of the other in certain questions, in the drafting of the text. The UNIDROIT Principles of International Commercial Contracts 1994(153) are an example.
 

XIV. What Divides Us

1) Different systems of justice distributive v. corrective justice

One major source of disunity in international private maritime law is to be found in the divergent approaches to justice itself. Aristotle, in Nicomachean Ethics(154) thought of justice as a mean, or intermediate point, between two extremes. One extreme consisted of an individual possessing too much (money, power, honour, etc. sometimes referred to as "holdings") in relation to others within society. The other extreme consisted of possessing too little compared to others. For Aristotle, justice was achieving a mean between these extremes.(155)

Aristotelian justice operated in two contrasting modes or forms, each of which corresponded to a mathematical operation. One form is what we term "distributive justice". It involved dividing a benefit among the members of as group according to some criterion of comparative merit, selected for a particular purpose and applied consistently to all members of the relevant group who qualified for participation in the distribution. The mean of justice was achieved when the ratios applied in the allocation were equal. Aristotle called this type of equality "geometrical".(156)

Corrective justice, on the other hand, did not involve "distributions", but rather "transactions". Transactions were either "voluntary", or consensual, transfers by a person of some or all of his "holdings", or "involuntary", resulting from one person depriving another of some or all of his "holdings" without the latter's consent. Equality in corrective justice was not one of ratios, but rather one of quantities. Aristotle regarded this type of equality as "arithmetic".(157) The goal of corrective justice was to restore to one person, who had been wrongfully dispossessed of something rightfully his, either the thing itself or its value in money, thus re-establishing the notional "mean" of equality which supposedly existed at the start of the "transaction".(158)

In the contemporary world, the difference between distributive and corrective justice is very evident in the principles underlying the social and legal systems of most industrialized democracies. In most of them (e.g. the United Kingdom and Commonwealth countries, France, Germany), the legal and social systems tend to privilege distributive justice. On the other hand, in the social and legal systems of the United States, the rights of parties tend to be secured primarily through the pursuit of corrective justice. As Ernest Weinrib has observed:(159)
 

To take a modern example, the legal regime of personal injuries can be organized either correctively or distributively. Correctively, my striking you is a tort committed by me against you, and my payment to you of damages will restore the equality disturbed by my wrong. Distributively, the same incident activates a compensation scheme that shifts resources among members of a pool of contributors and recipients in accordance with a distributive criterion. From the standpoint of Aristotle's analysis, nothing about a personal injury as such consigns it to the domain of particular form of justice. The differentiation between the corrective and distributive justice lies not in the different subject matters to which they apply, but in the differently structured operation that each performs on a subject matter available to both."


In the maritime legal systems of Western countries, the distributive/corrective justice dichotomy is apparent in various fields. One is the compensation of maritime personal injuries, where American-style corrective justice generally requires the injured seaman to sue for damages and maintenance and cure benefits, according to a corrective justice model. In most other Western countries, by comparison, such benefits are provided by workers' compensation legislation adapted to the maritime context, which provides compensation according to a model reflecting the principles of distributive justice.(160)

In international private maritime law, the American penchant for corrective as opposed to distributive justice can be a factor of disharmony. A notable example is the rejection by the U.S. of the 1984 Protocol(161) to the CLC Convention 1969(162) and, particularly, the Fund Convention 1971.(163) The U.S. preferred to enact OPA'90,(164) a statute in which compensation for pollution damage and clean-up costs must be sought by litigation and private insurance in the tradition of corrective justice, rather than through any international insurance mechanism.

2) Different political and social objectives

Political and social objectives can be another cause of disharmony in international private maritime law, for example between "flag of convenience" States and others.(165) For example, States such a Liberia, with its "open" ship registry, and the Philippines, with its large pool of maritime labour, are less concerned with substandard ships, protection of the marine environment and crew training than are wealthier countries. In many less developed lands, political and social objectives such as increasing national revenues and maximizing employment for poorer citizens weigh more heavily in the balance than improving maritime safe and preserving marine ecology.

Wealthier nations are not immune to political and social pressures, however. The Hamburg Rules,(166) for example, have long raised hackles in major shipping centres such as London, New York, Rotterdam, Antwerp and Tokyo. One key reason is because they give the cargo claimant an option of five jurisdictions in which to sue or arbitrate, no longer binding him to take proceedings in the place selected by the carrier whether or not there is a connection to the voyage in question. The Hamburg options are thus anathema to those who fear that the major shipping centres might lose their prominence as international venues of maritime litigation and arbitration, together with the important economic benefits which that status confers.

3) Different political systems

It goes without saying that differences in political systems can also affect the success of international conventions, including international maritime conventions. Traditionally, socialist countries showed less concern over international conventions addressing concerns of shipowners and more concern over conventions governing labour standards at sea and related matters.

National constitutions can also play a role in retarding or precluding the ratification or implementation of conventions and protocols, especially in the case of federal states such as Australia, Canada, Germany and the United States, where legislative jurisdiction is divided between two levels of government. In such cases, the implementation process can easily become embroiled in federal/provincial or federal/state conflicts of a political and legal nature, with the result that certain international conventions are not adopted or adopted with reservations under "federal State clauses" incorporated into the international text. This too can make for a lack of uniformity.

4) Different standards because of differences in national wealth

Differences in wealth between nations have much to do with the popularity of certain international rules and regulations in some lands and their relative unpopularity in others. Developing countries understandably are slow to embrace international conventions like SOLAS 197(167) and MARPOL 1973/1978,(168) with their multiple technical annexes and amendments in fields such as safety and pollution prevention, because these provisions often require significant spending and rigorous inspection programmes to achieve and secure compliance.(169) These measures are often beyond the means of smaller countries of the Third World. In this regard, William O'Neil, Secretary General of the IMO, believes that the more established maritime nations have a duty towards less developed shipping countries. As he quite rightly comments:(170)
 

"But we also have the right to expect the established maritime nations to play their part. Many of today's shipping registers were virtually created by the ship owners of the Northern Hemisphere as a way of avoiding taxes and other costs. They crew their ships with seafarers from Asia to cut down on their wage bills. I think we have a right to expect them to contribute towards the cost of training, inspection and administration that running an efficient fleet involves."


Another example of how differences in national wealth can affect uniformity of international maritime law is the Hamburg Rules.(171) From the very time of their adoption by UNCITRAL in 1978, the Hamburg Rules were far more popular among developing (shipper-dominated) countries than they were in the more affluent (shipowning) States of the First World. The ratification of the Hamburg Rules demonstrates the same divergence, because most of the twenty-six countries that have become parties to Hamburg thus far are nations of the developing world. The Rules have yet to be ratified or otherwise implemented in any major shipping nation. Indeed countries like Australia and Canada, in repeatedly postponing the decision to give effect to Hamburg, have generally cited their desire to await similar action by major maritime States.

5) Transnational interests, shipowners, cargo insurers, P&I Clubs, freight forwarders

It is no secret that international professional associations such as FIATA, the International Shipowners' Association and the International Group of P. & I. Clubs wield significant influence in international maritime circles. Aided by their constituent national bodies, these organizations can affect maritime legislation both nationally and internationally, the Hamburg Rules being a case in point. The Convention has never been popular with these transnational maritime organizations. They object particularly to the higher limitations of carrier liability for lost or damaged cargoes that Hamburg affords. They also oppose eliminating the traditional "error of navigation and management of the ship" defence of the Hague(172) and Hague/Visby Rules,(173) a provision which, although not found in any other international transportation convention, remains a veritable "sacred cow" to many shipowners, their associations and their P. & I. Clubs.

The Maritime Liens and Mortgages Convention 1967(174) is another example of a proposal which was unacceptable to many such groups, anxious as they were to avoid any expansion in the scope of maritime liens. On the other hand, it was acceptable to others, which wished to extend the rights for which a ship might be arrested.

6) The refusal of some states to give up their legislative sovereignty or authority over some maritime matters

The persistence of nationalism, even in the 21st century, also accounts for some problems in achieving greater harmony on maritime law matters within the community of nations. States do not easily surrender sovereignty in fields where they perceive that their "vital interests" are, or could be, adversely affected by subscribing to new international regimes and standards. Canada and the United States, for example, have not yet become parties to the Law of the Sea Convention 1982.(175) The principal reason is because they refuse to abandon their traditional untrammeled sovereignty over such matters as the regulation of the offshore fishery (Canada's major concern) and the exploitation of the seabed (the main obstacle to ratification for the United States).

7) The indifference of some governments towards international uniformity of maritime law and even to maritime law, because of their preoccupation with national matters and in the international field, with International Public Law

International private maritime law is rarely the "top priority" of national lawmakers, particularly where issues of social and economic policy are competing with maritime law issues for attention on the order papers of parliaments and congresses. National politicians frequently succumb to the dictates of short-term political expediency in deciding which legislation should go forward at any given time, and which pieces of law-making can wait for another day (or another government). Appeals by more internationally-minded jurists and elected officials, and even by international bodies such as IMO, UNCITRAL and the CMI, invoking the urgent need for and desirability of greater transnational legal uniformity, typically fall on deaf ears when matters of domestic law are pressing.

Even within the domain of transnational law, international public law usually takes priority over international private law. For example, ratifying a new free trade agreement or even a nuclear test ban treaty (which died in the U.S. Senate, although it did much to concentrate the minds of legislators in the House of Representatives) inevitably has more "legislative appeal" than giving effect to a new technical amendment to the Standards of Training, Certification and Watchkeeping Convention(176) or a new Collision Regulation.(177)

8) Inertia and lack of vision and courage ("It is only necessary for the good man to do nothing, for evil to triumph." Edmund Burke, 1727-97).

Finally, the harmonization of international law on maritime matters can be disregarded by law-makers out of apathy or the burning desire to avoid "rocking the boat", especially where powerful national or international interests make their opposition to the proposal in question known through lobbies and in the "corridors of power". Frequently, shortsightedness and an unwillingness to act quickly and decisively, even if the benefits of doing so seem obvious, accompany such inertia. The lengthy delays experienced in securing the ratification, accession, approval or acceptance of many international maritime law conventions, and the fact that so many of them are never implemented by major maritime Powers, are the unhappy by-products of such legislative lethargy and political myopia.
 

XV. How to Write a National Law or an International Convention

1) The appropriate government or international institution with political and legislative authority decides on the need for, and the general form of, the law

In the case of a national law, in a democratic country, the responsibility for deciding whether to legislate at all, and if so, in what way, belongs to the executive branch of the government that has legislative authority over the subject-matter concerned. The responsible minister of that government may play a vital role in motivating his or her colleagues to take legislative action, and in controlling the subsequent drafting of the legislation by the civil servants. Nevertheless, the ultimate choice of whether or not to submit the proposed statute to the competent legislative body resides with the executive as a whole (usually, the Cabinet).

2) Preparation of "position/white papers"

Before any major or controversial new law is adopted, however, governments frequently wish (and are generally well advised) to issue a "white paper", or "position paper" (usually under the authority of the relevant minister). The paper outlines the problem at hand, defines the principles that the government proposes to enshrine in the legislation envisaged and the objectives which it hopes to attain by taking legislative action. This document also serves an important educational function, in permitting all the legislators to be more fully apprised of the matter on which they will be called to vote, in raising the profile of the issue in the media and in facilitating public consultation on the measures proposed.

3) Appending a draft law to the white paper

It is proper and very helpful to append to the position/white paper a draft of the legislation contemplated. This permits legislators, the media and the public at large to become familiar with the precise contours of the draft law and to discuss the adequacy of the measure envisaged from the legal standpoint, even before the formal process of legislative review begins officially within the legislature and its committees. The position/white paper must, of course, be presented to the cabinet, discussed and amended until it reflects the majority view of the whole government, as opposed to the ideas of the responsible minister alone.

4) Recourse to experts

At times, the subject-matter of the legislation can be very complex or technical, or the government may need to have its collective mind "stimulated" in seeking appropriate solutions. In such cases, it is well to invite a group of jurists, or even a single "expert" of acknowledged stature in the field concerned, to prepare the white paper (or its first draft), as well as the first draft of the relevant legislation. This technique was used to great effect in France, when the world-famous dean, the late René Rodière, was called upon by the French Government to prepare the drafts of five major law(178) which revolutionized French maritime law in the period 1966-1969. Rodière did virtually everything alone and very well. His associates in effect played second fiddle in a one-man band.

5) Avoiding alternatives

One common error, however, is for the draft law (however and by whomever it is prepared) to contain alternatives or options. This can make the entire process of study, consultation and adoption difficult, contentious and time-consuming. The cabinet and minister concerned should not release the text of the draft law unless and until they are convinced that they have taken the most desirable approach to the problem from the standpoint of policy. The reasons for the approach favoured should be clearly explained in the position/white paper. If the government harbours doubts as to the policy it is advocating, the drafting of the legislation should be left until after the public consultation stage, before the formal introduction of the bill in the legislature.

6) Public consultation

Public consultation, on the basis of the white paper and the draft legislation, is highly desirable, especially for new or controversial or "reform" legislation. Adequate preparation and time must be devoted to this process, and, of course, the process must be fair, impartial and well-organized, permitting all interested groups and individuals to come forward and voice their reaction to the bill on paper and/or in person.

7) Similar principles for Non-Governmental Organizations (NGO's)

At times, national governments are loath to act, and NGO's have given the leadership in the preparation of international conventions and protocols. Many of the same principles then apply.

The relevant NGO, under whose auspices the convention or protocol in question is to be prepared for the eventual diplomatic conference, must be identified. In the case of maritime conventions, the IMO is now the principal international body involved in the elaboration of such international instruments, although, as appears from the appendices below, UNCTAD and UNCITRAL have also been the responsible for the preparation of many important conventions. The Comité maritime international (CMI), for its part, was the major body in the field from 1897 to about 1970.

The drafters of the convention should produce a good position/white paper or consultation document, explaining the problems addressed, the objectives sought and the principles governing the new or amended international rules envisaged. Again, it is most helpful to append a draft of the convention or protocol to this report. But the temptation to formulate alternatives and options in the position paper or in the draft should be resisted, for the same reasons as apply in the case of national legislation.

The body concerned must, of course, study and adopt the policy paper and the draft convention/protocol. Consultations with the major international organizations and associations concerned can then begin. In this process, however, the pitfall of making "deals" with specific groups or organizations representing "special interests" is to be avoided at all costs. International legislators, like national ones, must strive to produce the best possible international law, rather than to appease and placate specific lobbies promoting their own "agendas". Practising lawyers who participate in such international legislative endeavours should make a determined effort to "check their clients at the door" before beginning work. They should focus on the process of preparing clear and fair conventions and protocols that will stand the test of time and contribute to order and justice on the oceans of the world.

8) Regional conventions

Today, not every international maritime law problem requires a worldwide solution. Many problems lend themselves better to regional regulation. This has been recognized in Europe, where a number of international conventions, such as the CMR Convention 1956 on international carriage by road and the COTIF Convention on international rail carriage, which have harmonized much of transport law on that Continent over the last fifty years. More recently, the European Union has begun to regulate various aspects of shipping within the Union (see Vincent Powers, EC Shipping Law, 1992). There is even the possibility that a European carriage of goods by sea convention may be produced in the next few years, through the efforts of a group of European jurists now at work on this project.

I, however, favour institutions such as IMO legislating for the whole world on maritime law.
 

XVI. How Not to Write a Law or an International Convention

In drafting national and international legislation, just as there are several "do's" (see supra), so too there are a number of "don'ts" which, in my view, should be kept in mind by the national and international NGO's involved.

One is to send out to interested individuals or organizations questionnaires seeking their input on a number of questions, without at the same time providing them with either a policy statement or a draft bill (or draft convention) containing specific proposals to which they can react. Such questionnaires frequently end up gathering dust on some forgotten shelf, and usually result in a real waste of time for those who compose them, as well as for those who complete and return them, especially where there is no constructive "follow up".

Examples are the constant, unrelenting questionnaires of the CMI on carriage of goods by sea from 1987 to 1999, sent to the 55 CMI national associations (and answered by only about a third of them), which ended at the CMI New York Assembly on May 8, 1999 with the decision to do nothing. In a newsletter published following the Assembly,(179) the President also said:(180)
 

"At the 1999 Assembly delegates formally adopted the Report of the CMI International Sub-Committee on Uniformity of the Law of Carriage of Goods by Sea. This Report summarised the findings of the International Sub-Committee which has worked for many years under the Chairmanship of Professor Berlingieri. The Report will be given wide publicity but no further action on it will be taken until the CMI's new project on Issues of Transport Law has developed further. This project moves forward in conjunction with UNCITRAL. As you will know from the recently circulated Questionnaire, the object of the exercise is to identify a number of aspects of the carriage of goods by sea (other than liability) which might usefully be subject to a harmonising instrument."


Another mistake is to insert alternatives into the draft bill or draft convention. This inevitably causes confusion and controversy, making the whole consultation exercise awkward and inconclusive. The policy statement should outline the approach believed to be best under the circumstances; and that single option should be reflected in the wording of the draft bill or draft convention. Those who favour another option will then be able to react clearly, as will those who support the option proposed.

The CMI for fifteen years has had a tendency to put alternatives in its proposals, with unfortunate results in, for example, carriage of goods and the draft which became the Maritime Liens and Mortgages Convention 1993(181) and the Model Contractual Clauses attached to the Principles of Conduct for Classification Societies.(182)

Broad studies of a multifaceted problem, directed at an overly ambitious piece of new legislation, must also be avoided. A maritime law example of such a well-intentioned CMI initiative, but one doomed to failure from the outset, was the idea of a general "Third Party Liability Convention" (TPLC). The idea was to replace many existing private international law conventions with a comprehensive international instrument applying to many different kinds of marine liability. Among the liabilities to be covered in the TPLC were those resulting from collisions, nuclear ships, oil pollution, carriage of passengers, hazardous and noxious substances, wreck removal, bunker pollution, limitation for general maritime claims and evidence of financial responsibility. An International Working Group, after several years of effort, produced a working paper at the CMI's Centenary Conference in Antwerp in June 1997. The difficulties of combining the TPLC with existing regimes of limitation, the risk of the single regime succumbing to a concerted legal attack, and foreseeable drafting complexities, were soon realized. One commentator has concluded that: "...the TPLC may well forever remain no more than an academically attractive proposition."(183)
 

XVII. A Shortcut to International Legislation - The "Tacit Acceptance Procedure" of IMO

1) The traditional "express acceptance procedure"

A major defect of most international conventions is that they can only be brought up to date with great difficulty. In effect, each protocol to a convention must be renegotiated and readopted by the traditional diplomatic procedure known as the "express acceptance procedure". Conventions and protocols adopted by the International Maritime Organization (IMO), for example, in order to come into force, typically require the support of a fixed number of contracting States and sometimes also require support by States having a specific percentage of the world's tonnage.

In the 1960's and 1970's, the IMO experienced increasing difficulty obtaining the support of a two-thirds majority of Contracting Governments, which was then required to bring into force technical amendments to the Safety of Life at Sea Convention (SOLAS) 1960.(184) The key reasons were that:(185)
 

a) the number of IMO member-States kept on growing, making it more and more difficult to secure the necessary two-thirds majority; b) governments often gave priority to domestic legislation over accepting conventions and amendments; c) governments often made reciprocity by other governments a condition of their agreeing to a convention or an amendment; d) the promulgation of domestic legislation to give effect to the convention or amendment (required under many national constitutions) often entailed a further delay of two or three years in incorporating amendments into national law.


5) An innovation: the "tacit acceptance procedure"

The response of the IMO was ingenious. It devised a "tacit acceptance procedure", under which an amendment to a given convention or protocol would automatically come into force on a specified date, unless a certain percentage of Contracting States objected by another specified date. This procedure in fact reversed the traditional "express acceptance procedure". It meant that technical amendments to IMO conventions on crucial matters such as maritime safety could enter into force after only two or three years, rather than five or ten, as would have been the case under the traditional express acceptance procedure.(186)

Tacit acceptance was first used to bring into force (on September 1, 1984) the 1981 amendments to SOLAS 1974.(187) Later it was incorporated in the 1992 Protocol(188) to the CLC Convention 1969(189) and the Fund Convention 1971(190) on marine oil pollution, to provide for future increases in the limits of liability under those Protocols.(191) More recently, it has brought into force (on January 1, 1996) Regulation 8-1(192) of the SOLAS Convention 1974(193) on ship reporting systems and (on February 1, 1997) a new technical annex to the STCW Convention 1978(194) which effectively replaced the entire annex of the original Convention.(195)

3) The I.S.M. Code: crowning glory of the tacit acceptance procedure

The "jewel in the crown" of the tacit acceptance procedure, however, is undoubtedly the International Management Code for the Safe Operation of Ships and for Pollution Prevention, better known as the "International Safety Management Code", or "I.S.M. Code".

The I.S.M. Code grew out of a series of IMO Guidelines drawn up following the tragic sinking of the passenger ferry THE HERALD OF FREE ENTERPRISE in 1987.(196) First enacted as an annex to an IMO Assembly resolution on November 4, 1993,(197) the Code was originally only a recommendation. Because it was seen to be vital to improved ship safety and pollution prevention, however, IMO adopted it as Chapter IX of the SOLAS Convention scarcely more than six months later, on May 24, 1994.(198)

Thanks to the tacit acceptance procedure, the I.S.M. Code came into force on July 1, 1998 for most classes of cargo vessels engaging in international voyages(199) and now applies as mandatory law to approximately 98% of the world's merchant tonnage in the 140 SOLAS States. The Code is due to extend to all other cargo ships, as well as offshore drilling platforms, on July 1, 2002.(200)

The I.S.M. Code is one of the most important developments in international maritime law since the end of World War II, because it lays down comprehensive rules for both shipboard and shoreside management of vessels. In effect, the Code sets a new, international standard of seaworthiness, likely to affect the international maritime law of carriage of goods, marine insurance and limitation of shipowners' liability.(201) More than just a "model law" or a set of rules which parties may adopt voluntarily by contract, the Code embodies a compulsory regime governing all aspects of ship management, enforceable largely through Port State Control inspections, and providing severe penalties for non-compliance, notably ship detention.(202)

By securing the rapid entry into force of the I.S.M. Code, the tacit acceptance procedure has proven its worth as a shortcut to international uniformity in private maritime law, and one full of promise for the future. Perhaps some day, its use will be extended to conventions and protocols proper, instead of merely amendments to them.
 

XVIII. International Law Requires Compliance, and therefore Requires an International Executive Authority

The major defect of international law is not only that nations fail to ratify conventions, protocols and technical amendments, but also that when they do so, they may not conform to, and comply with, the law. A new and major change is taking place, however, and, in the maritime world, it is seen in IMO, which has both legislative authority (as seen in the ISM Code), and executive authority, in the person of William O'Neil, the Secretary General and his staff.

O'Neil has been remarkably successful in his efforts to force nations to comply with international laws and regulations of IMO origin, as the following excerpts from IMO Newsbriefs demonstrate:(203)
 

"Embrace VTS, urges O'Neil
IMO Secretary General William O'Neil today called on the maritime industry to embrace Vessel Traffic Service (VTS) systems more readily in an effort to increase the industry's maritime safety. Speaking at the opening of the VTS 200 Symposium in Singapore, he noted: 'It [VTS] makes shipping safer and also reduces the threat of oil spills in congested and narrow waterways. If shore control of ships through VTS will improve the safety of international shipping, then we should welcome it and find ways to overcome the difficulties that stand in the way of its implementation.'"
"O'Neil to visit Philippines
IMO secretary general Bill O'Neil will meet Filipino shipowners and crewing agents on January 20-22 during a visit to see Philippines developments in training facilities and to discuss compliance with the revised STCW Convention."


European countries are also keenly aware of the importance of a competent and active international executive to effective transnational maritime law, even on a regional level, as shown in the following extract from Fairplay Daily News:(204)
 

"French seek EU maritime watchdog
In an open letter admitting little confidence in the efficacy of IMO regulations, the French maritime industry has asked the European Parliament in Strasbourg for support on the issue of oil pollution from tankers. The January 17 letter, in the names of the presidents of the French Shipbuilders Association, French Shipowners Association, French Committee of Fishing, Association of French Ports and the French Marine Institute, asks for the enactment of measures protecting the European shoreline. It recommends the setting up of a European maritime agency whose first goal would be to coordinate security controls on tankers in European ports, with unified and standardised methods.' The letter further says that requests to IMO to enact new rules could only lead to bitter disappointment' and points out that IMO has no power to police the enforcement of its conventions...."


The drastic consequences of a lack of "enforcement" can be seen in another news report:(205)
 

"Slick threatens UAE coast
A small United Arab Emirates-owned tanker, Al Jazya 1, sank seven miles off Abu Dhabi yesterday and by last night an estimated 200-300 tonnes had escaped to form a large slick that is threatening the UAE coast. The 1960-built Honduras-flagged ship was carrying 980 tonnes of fuel oil, and is believed to have been carrying confiscated Iraqi oil from UN sanctions busters, auctioned off in Abu Dhabi recently. The Al Jazya 1 was en route from Abu Dhabi Free Port to Somalia when it sank. No other vessel was involved in the incident and its cause is not yet known. The captain and eight crew members were safely rescued by Abu Dhabi Coastguard, with no injuries reported...."
"Tanker Al Jazya 1, which sank yesterday of the Abu Dhabi coast, was a flat-bottomed design unsuitable for ocean passage, according to UAE marine sources. The 40-year-old Honduras-flagged ship was also in poor condition. Inspections undertaken in 1998 revealed that the hull was very badly corroded, with wooden bungs and even rags acting as plugs. Weather conditions yesterday in the Gulf were rough, and unofficial reports indicate that the vessel did succumb to the weather. Ageing ships such as this regularly ply the routes between the Middle East Gulf, Africa and the Indian Subcontinent. It is the last part of the world not to have implemented port state control plans, although a multi-national meeting in Bahrain last May agreed a policy for eventual compliance with IMO requirements."


I reiterate, however, that giving IMO more authority is preferable to France or the European Union trying to go it alone.
 

XIX. A Useful Solution to Lack of Uniformity of International Law: Uniform Conflict of Law Rules

As a last resort where international law is not uniform, one may rely on conflicts of law. But here again, international uniformity of the rules is to be preferred.

Among the best known efforts at harmonizing the rules of private international law are the Hague Conventions. Within Europe, similar achievements are: a) the Convention on the Law Applicable to Contractual Obligations (the Rome Convention) 1980;(206) b) the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (the Brussels Convention) 1968;(207) and c) the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (the Lugano Convention) 1988.(208)In addition, marine insurance conflicts are regulated by the Second and Third Council Directives of the European Union on Direct Insurance other than Life Insurance 1988(209) and 1992.(210)

Private international maritime law has benefitted from many conflicts conventions. Among the best known are: a) the Treaty on International Commercial Navigation Law (the Montevideo Treaty) 1940;(211) b) the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) 1958;(212) (121 States); c) the Draft International Convention for the Unification of Certain Rules Concerning Civil Jurisdiction, Choice of Law, and Recognition and Enforcement of Judgments in Matters of Collision (the Rio Rules) 1977(213); and d) the UNCITRAL Model Law on International Commercial Arbitration 1985.(214)

A landmark in the global unification of conflict of law rules is the Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters 1999(215) (final version expected in 2000), which is a courageous attempt to achieve harmonization of the conflicts rules of national law around the world in the areas of choice of jurisdiction and recognition of foreign judgments.

A consistent international methodology to solve conflicts problem would also be helpful to solve maritime law problems where International Private Maritime Law is not uniform.(216)

May I suggest my own methodology as a point of departure for future work.?
 

XX. Conclusions - "Often in Error, Never in Doubt")

In this around-the-world overview of international private maritime law, which is really of all international law, a number of conclusions emerge.

Firstly, international uniformity, because of its predictability and certainty, promotes international justice and international order. But world society is not yet ready for a monolithic international law. It cannot give up its diversity of social purpose and manner of doing things. In fact, we may be richer because of the diversity. Canada is richer because of its two cultures if we learn to live with them. America is entering a stage of cultural and geographic diversity in respect of language, particularly the Spanish language, after two centuries of the melting pot.

International laws in any form must recognize this diversity in substance and style or they will fail. They must also avoid imposing one legal system or legal tradition, at the cost of marginalizing another.

Secondly -- Alternatives. A second conclusion is that international law can be something other than international conventions. Model laws, restatements, standard-form agreements, standard clauses and standard terms, and the modern lex mercatoria/maritima can all play a role in increasing international legal uniformity.

Thirdly, the adoption of international law requires objectivity to do what is right. One cannot take part if one has inflexible positions, or if one is a pressure group with special interests to protect.

Fourthly, Leadership. ("The Lord gave us two ends to use: one to think with and one to sit with. The war depends on which we choose heads we win, tails we lose." Admiral Chester W. Nimitz, USN, 1885-1966) ("If you want to lead the orchestra, you must turn your back on the audience."). The international organizations and the NGO's, once having accepted responsibility, cannot refuse to lead. To make suggestions to conduct surveys, send out questionnaires and to prepare drafts with alternatives, is not enough.

Fifthly, Courage - ("Every time I paint a portrait I lose a friend." John Singer Sargent, 1856-1925). The adoption of international law requires courage, the willingness to be unpopular to at least some persons or people. It requires the courage to present a draft law without options, to append to it a reasoned position paper and to avoid long, involved make-work studies of projects of a very broad nature, which are very unlikely to be adopted.

Sixthly, international private law in general, and international private maritime law in particular, do not always necessitate worldwide conventions and protocols. Just as regional problems within a single country can usually best be solved by national legislation, so too regional problems involving more than one country are often addressed most effectively by regional international law, adopted and implemented by and for the States of the region concerned.

Seventhly, where conventions and protocols include technical amendments, the use of the "tacit acceptance procedure" developed by the IMO, can be a useful alternative to the traditional express approval procedure in international maritime law. Tacit acceptance has already proven its effectiveness as a shortcut to secure the entry into force, in record time, of the all-important I.S.M. Code, a new standard in international shipping, which has done much in the last two years to make ships safer and oceans cleaner around the world.

Eighthly, effective international law requires States not merely to accept, but also to implement, conventions and protocols. This in turn requires an international executive authority (such as IMO) with the political backing of the United Nations Organization and the energy and dedication to actually secure such multilateral conformity.

("If I have seen further, it is because I have stood on the shoulders of giants." Sir Isaac Newton, 1642-1727).

("We are like dwarfs on the shoulders of giants, so that we can see more than they, and things at a greater distance, not by virtue of any sharpness of sight on our part, or any physical distinction, but because we are carried high and raised up by their giant size." Bernard of Chartres, circa 1130).

 Postscriptum "What's past is prologue" William Shakespeare, 1564-1616, The Tempest, Act 2, Scene 1)

Clearly, international private law (a term which I hope will gain usage as a clarifying distinction to private international law conflict of laws) is not uniform. In particular, many important international conventions are only partially in force. The international bodies in charge are IMO and UNCITRAL on the international governmental side and principally the CMI and UNIDROIT on the other. IMO and UNIDROIT have had most success, have avoided transnational pressure groups for the most part and have acted like jurists. There is a lesson to be learned.


APPENDIX "A"

Examples of Good International Maritime Conventions

1) Comité Maritime International (CMI)

a) Collision Convention 1910 (84 States)

b) Salvage Conventions 1910 (86 States) with 1967 Protocol (10 States)

c) Hague Rules 1924 (89 States)

d) Hague/Visby Rules 1968 (24 States)/1979 (19 States)

e) Immunity of State-Owned Ships Convention 1926 and Protocol 1934 (31 States)

f) Maritime Liens and Mortgages Conventions 1926 (27 States), 1967 (5 States; 5 required, but Protocol not in force)

g) Limitation Conventions 1924 (15 States), 1957 (50 States) and 1976 (33 States) and Protocol 1996 (2 States not in force)

h) Arrest of Ships Conventions 1952 (77 States)

i) Civil Jurisdiction in Collision 1952 (72 States)

j) Penal Jurisdiction in Collision 1952 (78 States)

k) Draft Convention on Jurisdiction, Choice of Law and Recognition and Enforcement of Judgments in Collision Matters (the Rio Rules) 1977 (not in force)

2) UNCITRAL

a) Hamburg Rules 1978 (26 States)

b) Multimodal Convention 1980 (7 States; 30 required - not in force)

c) Terminal Operators Convention 1991 (2 accessions; 5 States required; not in force)

3) UNCTAD

a) Convention on a Code of Conduct for Liner Conferences 1974 (84 States)

b) Convention on Conditions for Registration of Ships 1986 (9 States; 40 States with 25% of world tonnage required - not in force)

c) Maritime Liens and Mortgages Convention 1993 (0 States; 10 required - not in force)

(N.B. The CMI contributed to the drafting of this Convention, presenting a draft revision of the Maritime Liens and Mortgages Convention 1967 at the CMI Conference in Lisbon in 1985, which draft was later among the documentation referred to in preparing the 1993 Convention by the Joint Intergovernmental Group of Experts on Maritime Liens and Mortgages and Related Subjects (JIGE), established by IMO and UNCTAD.)

d) Arrest Convention 1999 (0 States; 10 required - not in force)

(N.B. The CMI contributed to the drafting of this Convention, presenting a draft revision of the Arrest Convention 1952 at the CMI Conference in Lisbon in 1985, which was later among the documentation referred to in preparing the final version of the 1999 Convention by the above-mentioned JIGE, established by IMO and UNCTAD.)

4) IMO

a) Load Line Convention 1966 (143 States) and Protocol 1988 (33 States)

b) Intervention Convention 1969 (73 States); Protocol 1973 (42 States)

c) CLC Convention 1969 (75 States) and Protocols 1976 (54 States), 1984 (not in force) and 1992 (46 States)

d) Tonnage Measurement Convention 1969 (124 States)

e) Fund Convention 1971 (50 States) and Protocols 1976 (34 States), 1984 (not in force) and 1992 (44 States)

f) Dumping of Wastes Convention 1972 (77 States)

g) Collision Regulations 1972 (133 States)

h) MARPOL Convention 1973/1978 (Annexes I/II-108 States; Annex III-91 States; Annex IV-75 States; Annex V-94 States; Protocol 1997 (Annex VI)-2 States. Annexes IV and VI not in force)

i) SOLAS Convention 1974 (140 States); Protocol 1978 (92 States); Protocol 1988 (34 States) - in force February 3, 2000)

j) Athens Passenger Convention 1974 (26 States) and Protocols 1976 (20 States) and 1990 (3 States - not in force)

k) STCW Convention 1978 (133 States)

l) Law of the Sea Convention 1982 (85 States)

m) Salvage Convention 1989 (30 States)

(N.B. The CMI Conference held in Montreal in 1981 prepared an important first draft of this instrument, which was adopted with few amendments some eight years later, under the aegis of IMO, as the Salvage Convention 1989.)

n) OPRC Convention 1990 (45 States)

o) HNS Convention 1996 (0 States; not in force)

(N.B. Status of CMI conventions as per CMI website, consulted December 23, 1999. Status of UNCTAD and UNCITRAL conventions as per CMI Yearbook 1998. Status of IMO conventions as of June 30, 1999, as per IMO website, consulted December 23, 1999).


APPENDIX "B"

I. Carriage of goods by sea
 

(1) International

The Hague Rules, 1924 (Bills of Lading Convention, Brussels, 25 August 1924), entered into force 2 June 1931.

The Visby Rules, (1968 Protocol to Amend the Bills of Lading Convention, Brussels, 23 February 1968), entered into force 23 June 1977, amended by the Protocol of 21 December 1979 in respect of Special Drawing Rights (S.D.R.)(217), entered into force 14 February 1984. The Hague Rules 1924, as amended by the Visby Protocols of 1968 and 1979, are referred to here as the "Hague/Visby Rules 1968/79".

The Hamburg Rules 1978, (United Nations Convention on the Carriage of Goods by Sea, Hamburg, 31 March 1978) entered into force 1 November 1992.

The Multimodal Transport Convention, (United Nations Convention on International Multimodal Transport of Goods, Geneva, 24 May 1980), is not in force.
 

(2) Canada

Carriage of Goods by Water Act, S.C. 1993, c. 21. This is really the Hague/Visby Rules 1968/79. The package limitation is 666.67 S.D.R. per package or 2 S.D.R. per kilogram, whichever is the higher (Hague/Visby Rules only).
 

(3) United States

COGSA (Carriage of Goods by Sea Act 1936), Act of 16 April 1936, c. 229, 49 Stat. 1207, 46 U.S. Code Appx. 1300-1315. This is really the Hague Rules, 1924. The package limitation is $500 U.S.
 

(4) United Kingdom

Carriage of Goods by Sea Act 1971, (1971) U.K. c. 19 (Hague/Visby Rules 1968/79) as amended by the Merchant Shipping Act 1981, (1981) U.K. c. 10, s. 2. The package limitation is 666.67 S.D.R. per package and 2 S.D.R. per kilo. This is approx. $913.00 U.S. per package and approx. $2.75 U.S. per kilo (Hague-Visby Rules), or approx. $1333.00 CDN per package and approx. $4.00 CDN per kilo.
 

(5) France

(a) International Carriage

The 1924 Bills of Lading Convention (the Hague Rules) was authorized for ratification by the Law of 9 April 1936 and promulgated by the decree of 25 March 1937. This Convention was amended to comply with the Visby Rules by the Decree No. 77-809 of 8 July 1977. The Amending Protocol of 21 December 1979 in respect of S.D.R. was authorized for ratification by Law No. 86-798 of 3 July 1986 which substitutes 666.67 S.D.R. for the 10,000 p.g.f.(218) per package and 2 S.D.R. for the 30 p.g.f. per kilo. One S.D.R. is considered to be worth approximately 1.35 Euros, which is about 8,86 French francs.
 

(b) Domestic Carriage

Law No. 66-420 of 18 June 1966 (similar to the Hague Rules) and Decree No. 66-1078 of 31 December 1966. The Law of 18 June 1966 was amended by Law No. 79-1103 of 21 December 1979 and Law No. 86-1292 of 23 December 1986 to make it more closely reflect the Visby Rules. The package limitation is determined by reference to art. 4(5)(a) of the Hague/Visby Rules 1968/79.
 

(6) China

Arts. 41 et seq. of the Maritime Code of the People's Republic of China 1993 (hereinafter MCPRC) essentially ratify the Hamburg Rules 1978, coupled with certain Hague/Visby Rules 1968/79, and add new provisions, notably on liability for economic loss resulting from delay in delivery of the goods (art. 56).
 

II. Responsibility for cargo ashore
 

(1) International

There is no international convention with respect to responsibility for cargo before loading and after discharge.
 

(2) Canada

The Canada Shipping Act, R.S.C. 1985 c. S-9 at sect. 586 has a cursory provision on responsibility after discharge. The provision is of public order and so can be contracted out of in the bill of lading. The Supreme Court of Canada, on 26 June 1986 in Int'l Terminal Operators v. Miida Electronics (The Buenos Aires Maru) [1986] 1 S.C.R. 752 at p. 779, 1986 AMC 2580 at p. 1601, ruled that responsibility after discharge falls under "Canadian maritime law" which is "uniform throughout Canada" and encompasses "the common law principles of tort, contract and bailment." The Supreme Court of Canada, on 26 November 1998 in Ordon et al. v. Grail [1998] 3 S.C.R. 437 at pp. 489-490, (1998) 232 N.R. 201 at pp. 261-262, 166 D.L.R. (4th) 193 at p.229, (1999) AMC 994 at pp.1019-1020, confirmed its holding in Chartwell Shipping Ltd. v. Q.N.S. Paper Co. [1989] 2 S.C.R. 683, 101 N.R. 1, 26 Q.A.C. 81, refd. to pp. 695-97, finding that "Canadian maritime law" is comprised "of principles deriving in large part from both the common law and the civilian tradition."
 

(3) United States

The United States has an excellent law in respect of the responsibility of carriers for cargo before and after discharge-the Harter Act 1893, Act of February 1893, c. 105, 27 Stat. 445, 46 U.S. Code Appx. 190-196. State legislation in respect of the liability of warehousemen, etc. also plays a role.
 

(4) United Kingdom

The former Merchant Shipping Act 1894, (1894) 57 & 58 Vict. c. 60 at sects. 492 to 501, dealt with delivery of cargo and incidentally with the responsibility for the cargo when it had been landed. These sections were repealed in 1993 (The Merchant Shipping Act 1993, c. 50, s. 1(1), Sch., Pt. XV). The common law rules on torts, contract and bailment generally apply before loading and after discharge.
 

(5) France

France has an excellent law in respect of cargo ashore, being Law No. 66-420 of 18 June 1966 at arts. 15 and 27, supplemented by Decree No. 66-1078 of 31 December 1966 at arts. 38 and 39. Carriers, stevedores and terminal operators are responsible for goods in their charge ashore but they may limit liability. Suit in contract is only possible against the terminal operators or stevedores by the person who hired their services: art. 52 of the Law of 18 June 1966. When it is the carrier who has hired the stevedore, the carrier will be held responsible for loss or damage to the cargo.
 

(6) China

The MCPRC deals with the period of responsibility at art. 46 (port to port for containerized goods; tackle to tackle for non-containerized goods), which essentially modifies art 4 of the Hamburg Rules (where the period of responsibility is from port to port for all cargoes).
 

III. Bills of Lading Act
 

(1) International

There is no international convention on bills of lading. The CMI adopted voluntary rules on shipping documents (CMI Uniform Rules for Sea Waybills, Paris, 29 June 1990, and CMI Rules for Electronic Bills of Lading, Paris, 29 June 1990).
 

(2) Canada

Bills of Lading Act, R.S.C. 1985, c. B-5 (very similar to the former U.K. Bills of Lading Act of 1855, see infra at III(4)).
 

(3) United States

The Pomerene Act 1916, recodified in 1994, 49 U.S. Code 80101-80116, is a remarkable statute that takes into account "non-negotiable bills of lading".
 

(4) United Kingdom

Carriage of Goods by Sea Act 1992, 1992 U.K. 1992, c. 50 which statute covers bills of lading, waybills, received for shipment bills of lading, electronic documents and ship's delivery orders. This statute repealed and replaced the former U.K. Bills of Lading Act. 1855 (18 & 19 Vict. c. 111).
 

(5) France

There is no equivalent to a bill of lading act in France. The parties to the bill of lading contract and who may sue on it is determined in the light of arts. 33 and 49 of Decree No. 66-1078 of 31 December 1966, read with arts. 31 to 41 of Law No. 69-8 of 3 January 1969 that refer to risk allocation in maritime sale contracts.
 

(6) China

China essentially ratified arts. 14 and 15 of the Hamburg Rules 1978 with slight modifications at arts. 72 to 74 MCPRC. Re the negotiability of bills of lading at arts. 79 and 80 MCPRC, China was greatly inspired by the U.S. Pomerene Act 1916.
 

IV. Collisions
 

(1) International

The International Convention for the Unification of Certain Rules of Law With Respect to Collisions Between Vessels, Brussels, 23 September 1910, which entered into force 1 March 1913.

The International Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in Matters of Collisions or Other Incidents of Navigation, 1952, Brussels, 10 May 1952, which entered into force on 20 November 1955.

The International Convention on Certain Rules Concerning Civil Jurisdiction in Matters of Collision, 1952, Brussels, 10 May 1952, which entered into force on 14 September 1955.

The Draft International Convention for the Unification of Certain Rules Concerning Civil Jurisdiction, Choice of Law, and Recognition and Enforcement of Judgments in Matters of Collision, Rio de Janeiro, September 1977 (Comité Maritime International, Handbook of Maritime Conventions, Matthew Bender & Co. Inc., New York, 1998, Doc. 4 (hereinafter cited as CMI Handbook).)

The Draft Rules for the Assessment of Damages in Maritime Collisions ("Lisbon Rules"), 29 February 1988, CMI Handbook, Doc. 49.
 

(2) Canada

Canada enacted The Maritime Conventions Act 1914, (1914) 4 & 5 Geo. 5, S.C. 1914, c. 13, to give effect to the Collision Convention, 1910. See the Canada Shipping Act, R.C.S. 1985, c. S-9 at sects. 562 et seq. Thus, Canada has the proportionate fault rule by statute, and for ships and cargo (sect. 565(1)). Innocent third party ships receive 100% and death and personal injury claimants may recover 100% from vessels who are partially or fully at fault (sect. 566(1)).

Proportionate fault also applies in respect of the division of damages resulting from maritime torts other than ship collisions, as well as in inland waters. See Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd. [1997] 3 S.C.R. 1210 at pp. 1260-1268, (1997) 153 D.L.R. (4th) 385 (Supr. Ct of Can.) at pp. 419-425; Ordon Estate v. Grail [1998] 3 S.C.R. 437 at p. 517, (1998) 166 D.L.R. (4th) 193 at p.249-250, 232 N.R. 201 at p. 297-298, (1999) AMC 994 at p. 1039-1040.
 

(3) United States

The United States has not adopted the Collision Convention, 1910. Proportionate fault was introduced by the Supreme Court of the United States in U.S. v. Reliable Transfer Co. 421 U.S. 397, 1975 AMC 541 (1975), but only for damage to the vessels themselves. Cargo may therefore recover 100% from the colliding vessel; see The Atlas, 93 U.S. 302 (1876); Anco Princess (Gulfcoast Transit Co. v. The Anco Princess) 1978 AMC 2471, [1978] 1 Lloyd's Rep. 293 (E.D. La. 1978); Oriental Hero-Castor 1976 AMC 1306 (S.D. N.Y. 1976); Allied Chem. Corp. v. Hess Tankship Co. 661 F. 2d 1044 (U.S.C.A. 5 Cir. 1981).
 

(4) United Kingdom

The U.K. adopted the Maritime Conventions Act 1911, (1911) 1 & 2 Geo. 5, c. 57, which put into effect the Collision and Salvage Conventions of 1910. There is proportionate fault for ship and cargo and 100% recovery as in Canada for personal injury and death claims. This Act was repealed in part by The Merchant Shipping Act 1995, (1995) c. 21, s. 314(1), Sch. 12. Today, proportionate fault in ship collisions is provided for by the Merchant Shipping Act, 1995, U.K. 1995, c. 21 at sects. 187-189.

The U.K. ratified the International Convention on Certain Rules Concerning Civil Jurisdiction in Matters of Collision, 1952, on 18 March 1959.
 
 
 

(5) France

(a) The international regime

France authorized ratification of the Collision Convention, 1910 by the Law of 2 August 1912, promulgated by the Decree of 12 March 1913. It governs collisions between ships of different countries which are party to the Collision Convention.

The International Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in Matters of Collisions or Other incidents of Navigation, 1952 was ratified on 20 May 1955, but France decided to exercise its option to reserve art. 4, para. 2 of the Convention.

France also ratified the International Convention on Certain Rules Concerning Civil Jurisdiction in Matters of Collision, 1952 on 25 May 1957.
 

(b) The domestic and residuary regime

France has Law No. 67-545 of 7 July 1967 and Decree No. 68-65 of 19 January 1968, which largely reproduces the proportionate fault rule of the Collision Convention, 1910. It governs collisions between French ships (i.e. where the Collision Convention, 1910 does not apply).
 

(6) China

On 28 August 1994, China acceded the Collision Convention, 1910.
 

V. Collision regulations
 

(1) International

The 1960 Rules were repealed by the International Regulations for Preventing Collisions at Sea 1972 (COLREGS), 20 October 1972, entered into force on 15 July 1977, as amended on 1 June 1983, on 19 November 1989, on 19 April 1991 and on 1 May 1996.
 

(2) Canada

The Canada Shipping Act, C.R.C. 1978 c. 1416 (the Collision Regulations).

The Canada Shipping Act, R.S.C. 1985, c. S-9 at sects. 562 et seq., repealed in R.S. 1985, c. 6 (3rd Supp.), s. 77, in order to ratify the 1972 Collision Regulations as amended on 19 November 1981.
 

(3) United States

The U.S. ratified the 1960 Rules, Pub.L No. 88-131, 77 Stat. 194, on 24 September 1963, 33 U.S.C. 1061-1094. They were repealed when the COLREGS was ratified on 23 November 1976. The COLREGS were removed form the Code of Federal Regulations (61 Fed. Reg. 10466, 14 March 1996) on 1 April 1996, but remain effective. See 33 U.S.C. 1602.
 

(4) United Kingdom

The COLREGS, as amended, were enacted by the Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1996, SI 1996/75, in force 1 May 1996.
 

(5) France

The COLREGS were adopted in 1993. The amendments to the convention were ratified by a decree on 2 July 1997.
 
 
 

(6) China

On 7 January 1980, China acceded the COLREGS, as amended (see arts. 165 et seq. of the MCPRC).
 

VI. Limitation of shipowner's liability
 

(1) International

The Brussels Limitation Convention of 1924, 25 August 1924, in force on 2 June 1931.

The Brussels Limitation Convention of 1957, 10 October 1957, in force on 31 May 1968, as amended by the Protocol of 21 December 1979, in force on 6 October 1984.

The IMO Limitation Convention of 1976, London, in force on 1 December 1986, amended by the IMO Protocol of 1996 to Amend the Convention on Limitation of Liability for Maritime Claims, 1976, London, 2 May 1996, not yet in force.
 

(2) Canada

Canada is not a party to any of the above Conventions, but has enacted provisions of the 1976 Convention, as amended by the 1996 Protocol, into the Canada Shipping Act, S.C. 1998, c. 6, which came into force on 10 August 1998, at sects. 574-584. Where the tonnage of the ship is less than 300 tons, the limitation is $500,000 CDN, and $1 million CDN for claims for loss of life and personal injury. For ships for which no certificate is required and in the case of loss of life or personal damage, the limitation is the greater of two million S.D.R. and 175,000 S.D.R., multiplied by the number of passengers on board the ship. This is approximately equivalent $4 million CDN and $350,000. CDN respectively. Also, where no contract of passenger carriage has been signed, the limitation for claims of loss of life or personal injury is of 175,000 S.D.R., multiplied by the number of passengers authorized by the ship's certificate.
 

(3) United States

(a) The Limitation Act 1851, Act of 3 March 1851, c. 43, s. 3, 9 Stat. 635, is presently 46 U.S. Code Appx. 183 et seq. The U.S. is not party to any limitation convention.
 

(b) Limitation is based on the value of the shipowner's interest in the vessel after the collision, plus the value of any earned freight: Norwich Co. v. Wright 80 U.S. 104 at p. 120 (1871). See especially The City of Norwich (Place v. Norwich & New York Transportation Co.) 118 U.S. 468 at p. 493 (1886), where the value of the shipowner's interest was held to be calculated at the time of the termination of the collision voyage, i.e. when the ship had sunk and had to be raised.
 

(c) In the case of the total loss of the ship, if the fund is insufficient to satisfy claims, a fund of 420$ U.S. per ton will be established for death and bodily injury claims, as per the Sirovich Amendment of 1936, i.e. Act of 5 June 1936, c. 521, 49 Stat. 1480, as amended by Act of 19 October 1984, P.L. 98-498, title II, subtitle A, s. 213(a), 98 Stat. 2306. See Oliver J. Olson & Co. v. American Steamship Marine Leopard 356 F. 2d 728 at p. 737 (9th Cir. 1966); U.S. v. S/S Helena 295 F. Supp. 610 at p. 612 (E.D. La. 1969); Complaint of Caribbean Sea Transport Ltd. 748 F. 2d 622 at pp. 627-29 (11th Cir. 1984). In re Cleveland Tankers, Inc. 67 F. 3d 1200, 1996 AMC 151 (6 Cir. 1995).
 

(d) The charterer (unless by demise) does not have the benefit of the limitation of liability provision: 46 U.S. Code App. 186.
 

(e) Seamen's claim for wages or for maintenance and cure are not subject to the Act (not to workmen's compensation legislation); 46 U.S. Code Appx. 189. They may, however, take suit against the vessel owner under the Jones Act, Act of 5 June 1920, c. 250, s. 33, 41 Stat 1007, 46 U.S. Code Appx. 688. See Hugney v. Consolidation Coal Co. 345 F. Supp. 1079 (W.D. Pa. 1971).
 

(f) The century-old obsolescent doctrine that insurance proceeds paid to a shipowner entitled to limited liability are not available to the injured party must await the Supreme Court: Tug Huntington Lim. Procs. 683 F. 2d 42, 1982 AMC 2588 (2 Cir. 1982), modifying 1980 AMC 213 (E.D. N.Y. 1979). See The City of Norwich (Place v. Norwich& New York Transportation Co.) 118 U.S. 468 at p. 493 (1886).
 

(g) The prescription period applicable to the owner of the vessel is six months after a claimant has given to or filed with such owner written notice of the claim: 46 U.S. Code App. 185; see also Rule F(1), Supplemental Rules for Certain Admiralty and Maritime Claim, Federal Rules of Civil Procedure.
 

(4) United Kingdom

The 1976 Limitation Convention was originally set out in the Merchant Shipping Act 1979, (1979) U.K. c. 39, Sch. 4, Part 1 and came into force for the U.K. on 31 January 1980. The actual amounts to which liability is limited in arts. 6, 7 and 8 of the Convention were supplemented by s. 1 of the Merchant Shipping Act 1981, (1981) U.K. c. 10 which substituted S.D.R. in limitation provisions. Today, the 1976 Limitation Convention has the force of law in the U.K. by virtue of the Merchant Shipping Act 1995, U.K. 1995, c. 21, sect. 185(1) and Sch. 7 Part I, in force 1 January 1996.

The Merchant Shipping and Maritime Security Act Act 1997, U.K. 1997, sect. 15(1), adding sect. 185(2A) to (2E) to the Merchant Shipping Act 1995, provided for the coming into force of the 1996 Protocol amending the 1976 Limitation Convention, by proclamation. The 1996 Protocol was brought into force in the U.K. by The Merchant Shipping (Convention on Limitation of Liability for Maritime Claims) (Amendment) Order 1998, S.I. 1998, No. 1258 of 19 May 1998.
 

(5) France

(a) The international regime

France ratified the 1924 Limitation Convention on 23 August 1935 (denunciation in 1976).

France also ratified the 1957 Limitation Convention by Decree No. 59-1365 of 3 December 1959 with certain reservations. See Decree No. 60-456 of May 1960.

The 1976 Convention was authorized for ratification by Law No. 79-1146 of 29 December 1979, and promulgated by Decree No. 86-1371 of 23 December 1986. Ratification of the 1996 Protocol amending the 1976 Convention is expected.
 

(b) The domestic and residuary regime

Law No. 67-3 of 3 January 1967 at arts. 58-69 and Decree No. 67-967 of 27 October 1967 at arts. 59-70 largely incorporate the principles of the 1957 Convention. The Law of 3 January 1967 was modified by Law No. 84-1151 of 21 December 1984 so as to incorporate into French domestic law the principles of the 1976 Convention. These amendments came into force on 1 December 1986. See also Law No. 84-1173 of 22 December 1984, amending Law No. 67-545 of 3 July 1967, in respect of the salvor's limitation of liability.
 

(6) China

Arts. 204 et seq. of the MCPRC. China adopted the tonnage system (art. 210 MCPRC) replacing the old system based on the value of the ship (this more or less corresponds to the 1976 Limitation Convention).
 

VII. Salvage
 

(1) International

The CMI Salvage Convention, Brussels, 23 September 1910, which came into force on 1 March 1913, and the Amending Protocol of the Salvage Convention, Brussels, 27 May 1967, which came into force on 15 August 1977.

The International Convention on Salvage, adopted by the IMO, London, 28 April 1989, which came into force on 14 July 1996.
 

(2) Canada

The Maritime Conventions Act 1914, (1914) 4 & 5 Geo. 5, c. 13 gave effect to the 1910 Salvage Convention. See Canada Shipping Act, R.S.C. 1985, c. S-9 at sects. 450-72 (denunciation in 1994).

The Procedures and Guidelines of the Salvage Awards Committee of the American Institute of Marine Underwriters, New York, August 1988.

The 1989 Convention on Salvage was also ratified by the Canada Shipping Act, R.C.S. 1985, c. S-9, sect. 449.1(1) and Sch. V, enacted by S.C. 1993, c. 36, sects 1 and 21, in force on 14 November 1994.
 

(3) United States

The United States proclaimed the 1910 Salvage Convention to be in force as of 1 March 1913. See 37 Stat. 1670. The judge-made American law on salvage was brought into conformity with the 1910 Salvage Convention by the Salvage Act, Act of 1 August 1912, c. 268, 37 Stat. 242, 46 U.S. Code Appx. 727-731.

The 1989 Convention on Salvage deposited its instrument of ratification with the IMO on 27 March 1992, but the Convention came into force in the U.S. only as of 14 July 1996, when it came into force internationally (i.e. one year after 15 States agreed to be bound by it). See Salvage Convention 1989, art. 29(1); G. Brice, Maritime Law of Salvage, 2 Ed., Supp. 1, 1993, at para. 1-49. See also 137 Cong. Rec. S. 15398 (U.S. Senate's ratifying resolution of 29 October 1991). See McInnes, "Life Rescue in Maritime Law", (1994) 25 JMLC 451 at p. 452.
 

(4) United Kingdom

The United Kingdom adopted the 1910 Salvage Convention into its law by the Maritime Conventions Act 1911, (1911) 1 & 2 Geo. 5, c. 57. See the Merchant Shipping (Safety Conventions) Act 1949, (1949) 12 & 13 Geo. 6, c. 43, sects. 21 & 22.

From 1 January 1995 the 1989 Convention has the force of law in the United Kingdom by virtue of the Merchant Shipping Act 1995, U.K. 1995, c. 21 sect. 224(1) and (2) and Sch. 11, Part 1, which repealed and replaced the Merchant Shipping (Salvage and Pollution) Act 1994, U.K. 1994, c. 28.
 

(5) France

(a) The international regime

France made the 1910 Salvage Convention part of its law by the Law of 29 April 1916. It applies when he salvor ship or the salved ship belongs to a state which is party to the Convention.
 

(b) The domestic and residuary regime

When the salvor ship and the salved ship belong to different states, neither being party to the Convention, and the action being brought before and French court, Law No. 67-545 of 7 July 1967 and Decree No. 68-65 of 19 January 1968 apply.
 

(6) China

China acceded the International 1989 Convention on Salvage on 30 March 1994, stating in its instrument "[t]hat in accordance with the provisions of art. 30, para. 1 of the International Convention on Salvage, 1989, the Government of the People's Republic of China reserves the right not to apply the provisions of art. 30, paras. 1(a), (b), (c) and (d) of the said Convention."

China also acceded to the 1910 Salvage Convention on 28 August 1994.
 

VIII. Sovereign immunity
 

(1) International

The International Convention for the Unification of Certain Rules Relating to the Immunity of State Owned Vessels, Brussels, 10 April 1926 with the Protocol of 24 May 1934, both of which entered into force 8 January 1937. Countries have adopted or are leaning towards "restrictive" sovereign immunity, i.e. that commercial ships owned by a sovereign state are not immune from seizure.

The Law of the Sea Convention 1982, adopted at Montego Bay, Jamaica, 10 December 1982, in force 16 November 1994, see art. 236 on foreign sovereign immunity.
 

(2) Canada

The State Immunity Act, R.S.C. 1985, c. S-18, as amended, in force as of 15 July 1982. See in particular sect. 7 which refers to in rem and in personam actions. Canada now has restrictive sovereign immunity. See also the Federal Court Act, R.S.C. 1985, c. F-7, s. 43(7)(c).
 

(3) United States

Foreign Sovereign Immunities Act (F.S.I.A.) 1976, 28 U.S. Code, 1330, 1332(a), 1391(f), 1441(d), 1602-1611. An in rem action against vessels owned by a foreign sovereign is permitted when it is used for commercial purposes, and with respect to arrest for the enforcement of a preferred ship mortgage (see 28 U.S.Code, 1605(c), 1610(e)), or with respect to attachment, subject to certain conditions (see 1610 (d)(1) and (2)).
 

(4) United Kingdom

The State Immunity Act 1978, (1978) U.K. c. 33, in force 22 November 1978, designed in part to give effect to the European Convention on State Immunity 1972, Basle, 16 May 1972 (in force 11 June 1976). The restrictive sovereign immunity doctrine is found in sect. 10.

The U.K. ratified the 1926 Immunity Convention on 3 July 1979 with reservations (1) as to the application of arts. 1 and 2 of the Convention, and (2) to give effect to the terms of any international agreement with a non-contracting State, as to the right to make special provision (a) as regards the delay or arrest of a ship or cargo belonging to such a State, and (b) to prohibit seizure of or execution against such a ship or cargo.
 

(5) France

France ratified the 1926 Immunity Convention on 27 July 1955. France therefore has restrictive sovereign immunity. A ship owned by a foreign sovereign of a state which is not a party to the 1926 Convention may be seized as well when it is being used for commercial activity or when it is not performing a public act of state: Cour de Cassation, 25 February 1969, [1969] ETL 744.
 

(6) China
 
 
 

IX. Arrest of ships
 

(3) International

The Arrest of Sea-going Ships Convention, Brussels, 10 May 1952, entered into force 24 February 1956.

The Lisbon Draft Arrest Revision, 25 May 1985, is not in force.

And the Arrest of Ships Convention 1999, adopted by the IMO on 12 March 1999, is not yet in force.
 

(2) Canada

Canada has not adopted the 1952 Arrest Convention and has its own system of ship arrest, (largely modeled along the U.K.'s system). Federal Court Act, R.S.C. 1985, c. F-7, sect. 22 and sect. 43(2) and (3). (Writ in rem and Mareva injunction, but probably no attachment or "saisie conservatoire".)
 

(3) United Kingdom

The U.K has ratified the 1952 Arrest Convention but has not fully implemented it. There is the writ in rem, at s. 21(2), (3), (4) and (5) of the Supreme Court Act 1981, (1981) U.K. c. 54. There is no real attachment or saisie conservatoire, but the Mareva injunction is recognized at sect. 37(3) of the Supreme Court Act 1981.
 

(4) United States

The U.S. has its own very complete system which includes the maritime attachments and the action in rem. In virtue of the general maritime law, the U.S. system exists independently from the Supplemental Rules B & C, Supplemental Rules for Certain Admiralty and Maritime Claims, Federal Rules of Civil Procedure, 28 U.S. Code, as amended in 1985. See Schiffahartsgesellschaft Leonhardt & Co. v. A. Bottacchi S.A. de Navegacion 1986 AMC 1, 773 F. 2d 1528 (11 Cir. 1985), confirming the decision in Manro v. Almeida, 23 U.S. 473 (1825) at p. 7.
 

(5) France

France is a party to the 1952 Arrest Convention which was promulgated by Decree No. 58-14 of 4 January 1958. There are two regimes of ship arrest (conservatory attachment): (a) arrest of ships belonging to states which are party to the 1952 Arrest Convention and (b) arrest of ships belonging to states which are not party to the Convention, as well as French ships in a French port by a French claimant. In the second regime, a ship may be arrested for any claim. There is sister ship arrest under both regimes, but in the second the owner of the sister ship must be personally liable on the claim. The arrest of a ship is subject to a single procedure-saisie conservatoire or attachment. See Law No. 67-5 of 3 January 1967 for ship attachment. See also Decree No. 67-967 of 27 October 1967 as amended by Decree No. 71-161 of 24 February 1971. The procedure relating to the attachment of cargo, freight and other assets (bank accounts, insurance proceeds, etc.) are subject to the general law of France on civil procedures of execution, found in Law No. 91-650 of 9 July 1991 as completed by Decree No. 92-755 of 31 July 1992.
 

(6) China

The Regulation of the Supreme People's Court concerning Arrest of Ships prior to Litigation 1986.
 

X. Maritime liens and mortgages
 

(1) International

The Maritime Liens and Mortgages Convention, Brussels, 10 April 1926, entered into force 2 June 1931.

The Maritime Liens and Mortgages Convention, Brussels, 27 May 1967 is not in force.

The Lisbon Draft Liens Revision, 25 May 1985, is not in force.

The International Convention on Maritime Liens and Mortgages, 1993, Geneva, adopted by the IMO / UNCTAD on 6 May 1993 is not in force.
 

(2) Canada

Canada is not a party to any of the three Conventions: rather it has its own system of maritime liens and statutory rights in rem very similar to U.K. law. Federal Court Act, R.S.C. 1985, c. F-7, sect. 22 and Canadian maritime law. Special legislative rights now jeopardize the traditional ranking of liens.
 

(3) United States

The U.S. is not a party to any of the three Conventions but has a system of liens which is not too dissimilar to the 1926 Convention, especially in respect of tort liens, cargo liens and liens for necessaries. U.S. mortgages are favoured over foreign mortgages. See 46 U.S. Code 30101-31309, 31321-31330, 31341-31343.
 

(4) United Kingdom

The U.K. is not a party to any of the three Conventions and has its own law of liens and mortgages developed under the historical jurisdiction of the Admiralty Court. See in particular the Supreme Court Act 1981, (1981) U.K. c. 54 at sects. 20 and 21.
 

(5) France

(a) The international regime

The 1926 Liens and Mortgages Convention was authorized for ratification by the Law of 21 February 1935 and promulgated by the Decree of 29 November 1935. The Convention applies when the ship arrested in France belongs to a state that is party to the Convention and also in circumstances specified by French law.
 

(b) The domestic and residuary regime

Law No. 67-5 of 3 January 1967 and Decree No. 67-967 of 27 October 1967 largely incorporate the principles of the 1926 Liens and Mortgages Convention.
 

(6) China

China is not a contracting state to any of the three Conventions, but Chinese maritime law on the subject was drafted with reference to the Draft International Convention on Maritime Liens and Mortgages considered at the diplomatic conference in Geneva in April 1993, with some differences (see arts. 21-30 MCPRC). These differences are: (1) unlike the 1993 Convention, claims for payment of harbour dues under the Maritime Code of the People's Republic of China 1993 precede those for payment of salvage claims (see art. 22 of the Code); (2) the 1993 Convention is more restrictive in its scope of application; and (3) the Code has no equivalent for art. 12(2) or (3) of the 1993 Convention.

China also enacted two regulations with respect to maritime liens and claims: (1) Regulation for Maritime Court Relating to the Arrest of Ships Before Suing, and (2) Regulation for Maritime Court Relating to the Auction of Seizing Property and Remedies.
 

XI. Pollution
 

(1) International

The Prevention of Pollution of the Sea by Oil Convention, 1954, London, 12 May 1954, amended 11 April 1962, 21 October 1969, 15 October 1971, 2 November 1973, has being superseded by the more comprehensive International Convention for the Prevention of Pollution from Ships, 1973 (MARPOL 73/78), London, 2 November 1973 and its 1978 Protocol, London, 17 February 1978. MARPOL 73/78 came into force on 2 October 1983, except for Annex II (in force 6 April 1987), Annex V (in force 31 December 1988), Annexes III (in force 1 July 1992) and IV (not yet in force). MARPOL 73/78 was subsequently amended by Protocols adopted at London on 7 September 1984 (in force 7 January 1986), 5 December 1985 (in force 6 April 1987) and others. Amended numerous times, i.e. in 1978, in 1989, in 1990, in 1992, in 1995, and in 1996.

The International Convention Relating to Intervention on the High Seas in cases of Oil Pollution Casualties (Intervention Convention), Brussels, 29 November 1969, in force 6 May 1975. By a London Protocol adopted on 2 November 1973 (in force 30 March 1983) it was made applicable to pollution caused by a list of noxious chemicals other than oil.

The International Convention on Civil Liability for Oil Pollution, 1969 (C.L.C. 1969), Brussels, 29 November 1969, in force 19 June 1975. The C.L.C. 1969 was first amended by the London Protocol of 1976, signed at London on the 19 November 1976 and in force on 8 April 1981. It was then amended on 25 May 1984 by a London Protocol which has not yet come in force. On 27 November 1992, it was again amended by a London Protocol, in force 30 May 1996.

The International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (Fund Convention), Brussels, 18 December 1971, in force 16 October 1978. The Fund Convention was first amended by the London Protocol of 1976, signed at London 19 November 1976, in force 22 November 1994, amending art. 4 of the Convention. It was then amended on 25 May 1984 by a London Protocol which has not yet come in force. On 27 November 1992, it was again amended by a London Protocol, in force 30 May 1996.

The International Convention on the Prevention of Marine Pollution by Dumping of Wastes Convention, 1972, adopted in quadruplicate at London, Mexico City, Moscow and Washington, 29 December 1972, in force 30 August 1975, amended in London on 12 October 1978 and on 24 September 1980. A Protocol to the Convention was adopted at London on 8 November 1996.

The Protocol relating to Intervention on the High Seas in case of Marine Pollution by Substances other than Oil, London, 2 November 1973, in force 30 March 1983, and amended 27 February 1978 and 7 September 1984.

The United Nations Law of the Sea Convention 1982, adopted at Montego Bay, Jamaica, 10 December 1982, in force 16 November 1994.

The Oil Pollution Preparedness, Response and Cooperation (OPRC) Convention 1990, London, adopted on 30 November 1990, in force 13 May 1995.

The Draft Convention on the Establishment of an International Insurance Scheme for Compensation for Damages Resulting From the Carriage of Noxious and Hazardous Substances by Sea, 26 January 1990, replaced by the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS) Convention 1996, London, 3 May 1996, not yet in force.
 

(2) Canada

The Arctic Waters Pollution Prevention Act (A.W.P.P. Act), R.C.S. 1985, c. a-12, amended by S.C. 1987, c. 7 which received royal assent on 26 March 1987.

The Canada Shipping Act, R.S.C. 1985, c. S-9, Part XV, s. 654 et seq., amended by S.C. 1987, c. 7. By the 1987 Act, Canada implemented (1) the 1969 C.L.C. as amended by the 1976 London Protocol, (2) the 1971 Fund Convention as amended by the 1976 London Protocol which came into force on 22 November 1994 (see the Canada Shipping Act, sect. 673 as amended by S.C. 1993, c. 36, sect. 12, which came into force on 31 December 1993 by SI/93-256, Canada having acceded to it on 21 February 1995), and (3) the MARPOL 73/78. Part XV of the Canada Shipping Act on "Pollution Prevention and Response" R.S.C. 1985, c. S-9 at sects. 654-672, were amended by S.C. 1993, c. 36, sects. 2 to 11. Part XVI of the Act entitled "Civil Liability and Compensation for Pollution" (comprising sects. 673 to 727) was enacted by R.S.C. 1985 (3rd Supp.), c. 6, sect. 84, assented to on 26 March 1987, and came into force 24 April 1989 (SI/89-106). The Canada Shipping Act of 1985 was recently amended by An Act to amend the Canada Shipping Act (maritime liability) S.C. 1998 c. 6, which ratified the 1992 London Protocol concluded to amend C.L.C. 1969 as amended by the 1976 Protocol.

The Fisheries Act, R.S.C. 1985, c. F-14, as amended by S.C. 1987, c. 7.

The Ocean Dumping Control Act, R.S.C.1985, c. O-2 by which Canada implemented the 1972 Prevention of Maritime Pollution by Dumping of Wastes Convention, was repealed and replaced by sect. 153 of the Canadian Environmental Protection Act, R.S.C. 1985 (4th Supp.), c. 16, enacted as S.C. 1988, c. 22, assented to on June 28, 1988.

The Oil and Gas Production and Conservation Act, R.S.C. 1985, c. O-7.

Canada signed the HNS Convention 1996 on 9 September 1997, and ratification is expected.
 

(3) United States

The Federal Water Pollution Control Act (FWPCA), extensively amended and reorganized by the Act of 18 October 1972, P.L. 92-500, 86 Stat. 816 and the Act of 27 December 1977, P.L. 95-217, 91 Stat. 1566 (also known as the Clean Water Act); amended by the Act of 21 November 1978, P.L. 95-576, 92 Stat. 2467, amended by the Act of 21 October 1980, P.L. 96-483, 94 Stat. 2363; 33 U.S. Code 1251 et seq; and amended in large part by the Oil Pollution Act 1990 (OPA 90), 18 August 1990, P.L. No. 101-380, 104 Stat. 484, 33 U.S. Code sects. 2701-2761.

By its sect. 2004, OPA 90 also replaces or amends the liability provisions of the Trans Alaska Pipeline Authorization Act, Act of 16 November 1973, P.L. 93-153, title II, s. 204, 87 Stat. 586; 43 U.S. Code 1653; of the Deep Water Port Act, Act of 3 January 1975, P.l. 93-627, 88 Stat. 2126, amended by the Act of 25 September 1984, P.L. 84-419, 98 Stat. 1607; 33 U.S. Code 1501 et seq; and of the Outer Continental Shelf Lands Act, Act of 7 August 1953, c. 345, 67 Stat. 462, 43 U.S. Code 1331 et seq., and especially the 1978 amendments enacted by the Act of 18 September 1978, P.L. 95-372, title III, 92 Stat. 607; 43 U.S. Code 1811 et seq.

The Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), Act of 11 December 1980, P.L. No. 96-510, 94 Stat. 2767, 42 U.S. Code sect. 9601-9675, as amended.
 

(4) United Kingdom

The Prevention for Oil Pollution Act 1971, (1971) U.K. c. 60, consolidated the Oil in Navigable Waters Acts 1955 to 1971, which had given effect to the Prevention of Pollution of the Sea by Oil Convention, 1954, and to the Intervention Convention, 1969. The 1971 Act was slightly amended by the Merchant Shipping (Registration, etc.) Act 1993, U.K. 1993, c. 22, sect. 8(3) and Sch. 14, para. 66.

The Merchant Shipping (Oil Pollution) Act 1971, (1971) U.K. c. 59 giving effect to the Civil Liability Convention, 1969.

The Merchant Shipping Act 1974, (1974) U.K., c. 43 giving effect to the Fund Convention, 1971.

The Merchant Shipping Act 1979, (1979) U.K. c. 39, sect. 20 provides for giving effect to the Prevention of Pollution from Ships Convention 1973, the 1973 Protocol relating to Intervention on the High Seas in case of Marine Pollution by Substances other than Oil, the Protocol constituting attachment 2 to the final act of the International Conference on Tanker Safety and Pollution Prevention, London, 17 February 1978. Sect. 38 of the Merchant Shipping Act 1979 replaces gold francs by S.D.R. for the purposes of the Merchant Shipping (Oil Pollution) Act 1971 and the Merchant Shipping Act 1974. The Merchant Shipping (prevention of Pollution: Substances Other than Oil) (Intervention) Order 1997, SI 1997/1869 (in force 1 September 1997), gives effect to the 1973 Protocol, and prescribes substances other than oil, the threat of pollution from which, following a ship casualty, triggers the Secretary of State's powers of intervention under the Merchant Shipping Act 1995 sect. 137 in accordance with s. 138 A.

By the Merchant Shipping (Prevention of Pollution) (Intervention) Order 1980, SI 1980/1093, adopted under sect. 20 of the Merchant Shipping Act 1979, the U.K. gave effect to the Protocol of 2 November 1973 and to the Intervention Convention 1969 applying the convention to pollution caused by certain harmful chemicals other than oil, enumerated in the Annex to the Protocol.

The Dangerous Vessels Act 1985, U.K. 1985, c. 22.

The Food and Environment Protection Act 1985, U.K. 185, c. 48, Part II which replaced the Dumping at Sea Act 1974, (1974) U.K. c. 20 providing for the ratification of the Dumping from Ships and Aircraft Convention 1972, and the Dumping of Wastes Convention, 1972.

The Merchant Shipping Act 1995, U.K. 1995, c. 21, Chapter III, Part 1 at sects. 152 and 153 gives effect to the C.L.C. 1969, as amended by its 1992 Protocol, refd. to as the "International Convention on Civil Liability for Oil Pollution Damage 1992". See the Merchant Shipping Act 1995, sect. 152(1). At sect. 128(1), the Merchant Shipping Act 1995 also gives the U.K. Government the power to enforce the International Convention for the Prevention of Pollution from Ships, 1973, the Protocol relating to Intervention on the High Seas in Cases of Marine Pollution by Substances other than Oil, 1973, and the OPRC Convention 1990. Sect 129 provides for Orders in Council giving effect to provisions of the United Nations Law of the Sea Convention, 1982, for the protection or preservation of the marine environment from pollution by matter from ships. See also the Merchant Shipping (Prevention of Pollution) (Law of the Sea Convention) Order 1996, SI 1996/282.

The Merchant Shipping (Liability and Compensation for Oil Pollution Damage) (Transitional Provisions) (Revocation) Order 1997, SI 1997/2566 (in force 16 May 1998), denounces the C.L.C. 1969 and ratifies the Fund Convention 1969, as amended by the 1992 Protocol.

The Merchant Shipping (OPRC Convention) Order 1997, SI 1997/2567 (in force 2 December 1997), enables the Secretary of State to make regulations for the purpose of giving effect to the OPRC Convention 1990, particularly in respect of (1) the carrying out of inspections for that purpose; (2) the extra-territorial operation of the regulations; and (3) punishment for offences relating to specific contraventions of the regulations.
 

(5) France
 

The Law of 17 December 1926 as amended by Law No. 79-1 of 2 January 1979 (The Disciplinary and Penal Code of the French Merchant Marine) ratifies the Convention on the International Regulations for Preventing Collisions at Sea, 1972 (Law No. 86-1271 of 15 December 1986 extended its scope).

The Prevention of Pollution of the Sea by Oil Pollution, 1954 was promulgated in France by Decree No. 58-922 of 7 October 1958. The 1969 amendment to the Convention was promulgated by Decree No. 78-24 of 4 January 1978. See also Law No. 64-1331 of 26 December 1964 in respect of pollution of the sea by oil, amended by Law No. 73-477 of 16 May 1973 and Law No. 79-5 of 2 January 1979. France also adopted most of the numerous amendments that followed in 1978, in 1989, in 1990, in 1992, in 1995, and in 1996.

The Dumping from Ships and Aircraft Convention, 1972, was authorized for ratification by Law No. 73-1198 of 27 December 1983 and promulgated by Decree No. 74-494 of 17 May 1974. See also Law No. 76-599 of 7 July 1976 and Decree No. 82-842 of 29 September 1982 in respect of dumping from ships and aircraft and in respect of accidental pollution. See also Law No. 76-600 of 7 July 1976 in respect of dumping of incinerated wastes. The Dumping of Wastes Convention, 1972, was promulgated by Decree of 28 September 1977; the 1978 amendment was promulgated by Decree No. 82-426 of 29 May 1982. France is also a party to the Oslo Convention of 15 February 1972 on dumping in the North Sea and North East Atlantic.

The 1969 Intervention Convention, was promulgated by Decree No. 75-553 of 26 June 1975. France also put into force the 1973 London Protocol, by Decree No. 75-553 of 24 September 1986.

The C.L.C., 1969, was ratified on 17 March 1975, came into effect on 26 June 1975 by Decree No. 75-553 and was implemented internally by Law No. 77-530 of 26 May 1977. The 1976 amending Protocol was authorized for ratification by Law No. 79-1148 of 29 December 1979 and promulgated by Decree 81-473 of 7 May 1981. See also Law No. 77-530 of 26 May 1977 in respect of civil liability and the obligation to obtain insurance. The 1984 Protocol was approved on 8 September 1987, but it has not yet come into force. Authorized by Law No. 94-478 of 10 June 1994, France also approved the 1992 Protocol on 29 September 1994 by Decree No. 96-718 of 7 August 1996, which has not yet come in force.

The Fund Convention, 1971, was acceded on May 1978, was authorized for ratification by Law No. 77-1407 of 23 December 1977 and promulgated by Decree No. 78-1186 of 18 December 1978. The 1976 amending Protocol was authorized for ratification by Law No. 79-1148 of 29 December 1979. And authorized by Law No. 94-479 of 10 June 1994, France has approved the 1992 Protocol to the Fund Convention, 1971 on 29 September 1994 by Decree No. 96-719 of 7 August 1996, which has not yet come in force.

Law No. 64-1331 of 26 December 1964 on pollution liability and detention of ships, as amended by Law No. 73-477 of 16 May 1973 and Law No. 79-5 of 2 January 1979, was repealed and replaced by Law No. 83-583 of 5 July 1983 which took into account Annex I of the MARPOL 73/78 Convention and which provides for penalties within the meaning of the Intervention Convention 1969.

The Convention for the Prevention of Marine Pollution by Soil was authorized for ratification by Law no. 76-1180 of 22 December 1976.

The Protection of the Mediterranean Sea from Pollution Convention, Barcelona, 16 February 1976 was authorized for ratification by Law No. 77-1424 of 27 December 1977 and promulgated by Decree No. 78-1000 of 29 September 1978.

The Protocol relating to Intervention on the High Seas in Cases of Pollution by Substances other than Oil, 1973, as amended was authorized for ratification by Law No. 81-742 of 5 August 1981. Amendments to the Convention's 1978 Protocol were promulgated in 1986 by Decree No. 86-25 of 3 January 1986, in 1997 by Decrees No. 97-610, 97-611 of 31 May 1997 and 97-799 of 22 August 1997, and in 1998 by Decree No. 98-1135 of 9 December 1998.

The Protocol relating to Intervention on the High Seas in cases of Marine Pollution by Substances other than Oil signed in London in 1973 was authorized for ratification by Law No. 85-1172 of 12 November 1985 and promulgated by Decree No. 86-1076 of 24 September 1986.

France adopted the United Nations Law of the Sea Convention 1982 on 30 August 1996 by Decree No. 96-774.
 

(6) China
 

China adopted the Intervention Convention 1969, in force May 1990.

The C.L.C. 1969 was acceded to in April 1980, but at the time of depositing its instrument of accession the Representative of the People's Republic of China declared "that the signature to the Convention by Taiwan authorities is illegal and null and void." China also became a party to the C.L.C. PROT 1976 on 29 September 1986, notifying that "…the value of the national currency, in terms of S.D.R., of the People's Republic of China is calculated in accordance with the method of valuation applied by the International Monetary Fund." And just recently, the C.L.C. PROT 1992 was adopted on 29 March 1999.

The International Convention on the Prevention of Maritime Pollution by Dumping of Wastes Convention, 1972, came in force for China in December 1985.

China became a party to the MARPOL 73/78 in May 1990.

Several statutes and bylaws were also enacted in China with respect to pollution, e.g. the Maritime Environment Protection Law of China, 1982; the Bylaw of Environment Protection for Maritime Exploitation of Oil of China, 1983; the Administrative Regulation of Dumping of Wastes in Ocean, 1985.
 

XI. Arbitration
 

(1) International

The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) adopted on 10 June 1958.

The Inter-American Convention on International Commercial Arbitration (Panama Convention), adopted by the Organization of American States at the Specialized Inter-American Conference on Private International Law, in Panama City on 30 January 1975.

The Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards, (Montevideo Convention), adopted by the Organization of American States at the Specialized Inter-American Conference on Private International Law, at Montevideo, 8 May 1979.

The United Nations Commission on International Trade Law Model Law on International Commercial Arbitration, 1985, adopted on 21 June 1985 ("UNCITRAL Model Law 1985").
 

(2) Canada

The United Nations Foreign Arbitral Awards Convention Act, S.C. 1986, c. 21, ratifying the New York Convention, 1958.

The Commercial Arbitration Act, S.C. 1986, c. 22, ratifying the UNCITRAL Model Law 1985.

Also, the 10 provinces and 2 territories all adopted the two conventions in 1986.
 

(3) United Kingdom

The Arbitration Act 1950, 1950 U.K., c. 27, amended by the Arbitration Act 1979, 1979 U.K. c. 42.

The Arbitration (International Investment Disputes) Act 1966, 1966 U.K., c. 41.

The Arbitration Act 1975, 1975 U.K. c. 3 giving effect to the New York Convention, 1958.

By virtue of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, 1990 U.K., c. 40, sect. 66 and Sch. 7., only Scotland is a party to the UNCITRAL Model Law 1985.

The Arbitration Act 1996, 1996 U.K., c. 23, assented to on 17 June 1996, SI 1996/3146, which continues to enforce Geneva Convention awards and New York Convention awards under the 1950 Act.
 

(4) United States

The United States Arbitration Act, 9 U.S. Code sects. 1-14, first enacted 12 February 1925 (43 Stat. 883), codified 30 July 1947 (61 Stat. 669) and amended on 3 September 1954 (68 Stat. 1233). Chap. 2 was added on 31 July 1970 (84 Stat. 692); sect. 15 was added 16 November 1988 (102 Stat. 3969); sect. 16 was added 19 November 1988 (102 Stat. 4671) and redesignated 1 December 1990 (104 Stat. 5120); Chap. 3 was added 15 August 1990 (104 Stat. 448).

The U.S. is a party to the New York Convention,1958, but not the UNCITRAL Model Law 1985.
 

(5) France

France enacted the New York Convention, 1958 by Decree No. 80-354 of 14 May 1980, in force 1 October 1980, codified as arts. 1442 to 1507 of the New Code of Civil Procedure by Decree No. 81-500 of 12 May 1981.

France has not yet adopted the UNCITRAL Model Law 1985.
 

(5) China

China acceded to the New York Convention on 2 December 1986.

The People's Republic of China: Arbitration Law, promulgated 31 August 1994, in force 1 September 1994.


APPENDIX "C"

Examples of Good International Law

Good International Commercial Law

UNCITRAL Conventions

a) Convention on the Limitation Period in the International Sale of Goods 1974 (24 States) and Protocol 1980 (17 States)

b) Convention on Contracts for the International Sale of Goods 1980 (Vienna Sales Convention) (56 States)

c) Convention on International Bills of Exchange and International Promissory Notes 1988 (2 accessions; 10 States required; not in force)

d) Convention on Independent Guarantees and Stand-by Letters of Credit 1995 (5 States; in force January 1, 2000)

(N.B. Status of above UNCITRAL conventions as of December 14, 1999, as per the UNCITRAL website.)

UNIDROIT Conventions

e) Convention relating to a Uniform Law on the International Sale of Goods 1964 (9 States, but subsequently denounced by 5 of them)

f) Convention relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods 1964 (9 States but subsequently denounced by 5 of them)

g) Convention on Agency in the International Sale of Goods 1983 (5 States; 10 States required; not in force)

h) Convention on International Financial Leasing 1988 (8 States)

i) Convention on International Factoring 1988 (6 States)

j) Convention on Stolen or Illegally Exported Cultural Objects 1995 (12 States)

k) Preliminary Draft Convention on International Interests in Mobile Equipment 1999 (with Protocol for Aircraft Equipment and Containers) (on work programme for 1999-2001)

(N.B. Status of UNIDROIT conventions, as per UNIDROIT website, consulted December 22, 1999.)


APPENDIX "D"

Examples of Good Model Laws, Conventions and Restatements

1) Model Laws

UNIDROIT

a) Principles of International Commercial Contracts 1994

b) Guide to International Master Franchise Arrangements 1998

c) Model Law on Leasing (on work programme for 1999-2001)

d) Uniform Rules Applicable to Transport (on work programme for 1999-2001)
 

UNCITRAL

a) The Model Law on International Commercial Arbitration 1985

b) The Legal Guide on Electronic Funds Transfers 1987

c) The Legal Guide on Drawing Up International Contracts for the Construction of Industrial Works 1988

d) The Legal Guide on International Countertrade Transactions 1992

e) The Model Law on International Credit Transfers 1992

f) The Model Law on Procurement of Goods and Construction 1993

g) The Model Law on Procurement of Goods, Construction and Services with Guide to Enactment 1994

h) The Model Law on Electronic Commerce 1996

i) The Model Law on Cross-Border Insolvency 1997
 

2) Hague Conventions

a) Convention Abolishing the Requirement of Legalisation for Foreign Public Documents 1961 (62 States)

b) Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 (38 States)

c) Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970 (30 States)

d) Convention on the Law Applicable to Agency 1978 (4 States)

e) Convention on the Law Applicable to Contracts for the International Sale of Goods 1986 (1 State)

f) Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters 1999 (final version expected in 2000)
 

3) Restatements

a) First Restatement of the Conflict of Laws 1934

b) Restatement (Second) of the Conflict of Laws 1969

c) Restatement (Third) of Foreign Relations Law 1986


NOTES

Professor of Law, McGill University, Distinguished Visiting Professor of Maritime and Commercial Law, Tulane University School of Law, and counsel to Langlois Gaudreau O'Connor 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.
 

1.

The Second William Tetley Maritime Law Lecture, delivered at Tulane Law School, New Orleans, January 26, 2000.

2.

See W. Tetley, Maritime Liens and Claims, 2 Ed., Blais, Montreal, 1998, at p. 983, note 233 (hereinafter "Tetley, Maritime Liens and Claims").
 

3.

10 Ed. (E.R. Hardy Ivamy, ed.) Butterworths, London, 1988 at p. 24.

4.

Pocket Edition (Bryan A Garner, ed.-in-chief), West Publishing Co., St. Paul, Minn., 1996 at p. 332.

5.

See footnote 8.

6.

See footnote 9.

7.

See footnote 10.

8.

 Philip C. Jessup, Transnational Law, Yale University Press, New Haven, Connecticut, 1956 at p. 2.

9.

. It is interesting that there is a venerable tradition in French legal scholarship of referring to "droit public international " (international public law), rather than to "droit public international"  (public international law) and to "droit privé international"  (international private law), rather than to "droit international privé"  (private international law). See, for example, Léon Duguit , Traité de droit constitutionel, 3 Ed., Les Éditions Boccard, Paris, 1927, para. 67, on "droit public international". Some distinguished French authors have also discarded the term "droit international" as inappropriate, preferring a term such as "droit des gens" (literally "law of peoples"), thereby emphasizing the concepts of human solidarity and the primacy of the individual within the international legal order. See Georges Scelle, Précis de droit des gens, 2 vols., Sirey, Paris, 1932 and 1934. See also Nicholas Kasirer, AA Reading of Georges Scelle's Précis de droit des gens"  (1986) 24 Can. Ybk. Int'l. L. 372 at p. 378.

10.

.59 Stat. 1055 (1945), TS No. 993.

11.

See Digest of Justinian, Book XIV, Title 2, art. 9; see also W. Tetley, "The General Maritime Law - The Lex Maritima" (1994) 20 Syracuse J. Int'l L. & Comm. 105 at p. 109, reprinted in [1996] ETL 469 (hereinafter "Tetley, Lex Maritima").

12.

.On the historic lex mercatoria/lex maritima, see generally, W. Tetley, Lex Maritima at pp. 108-133; W. Tetley, Maritime Liens and Claims, at pp. 3-36; W. Tetley, "Mixed Jurisdictions: Common Law vs Civil Law (Codified and Uncodified) (Part II)" 1999-4 Unif. L. Rev. 1 at pp. 9-11 (hereinafter "Tetley, Mixed Jurisdictions". See also L.E. Trakman, "The Evolution of the Law Merchant: Our Commercial Heritage" (1980-81) 12 JMLC 1 (Part I); (1980-81) 12 JMLC 153 (Part II); G.W. Paulsen, "An Historical Overview of the Development of Uniformity in International Maritime Law" (1983) 57 Tul. L. Rev. 1065.

13.

 On the civil law tradition underlying the general maritime law, see Tetley, Lex Maritima 115 and, with respect to the general maritime law of the United States in particular, ibid. at pp. 121-133.

14.

.On the modern lex mercatoria generally, see Tetley, Mixed Jurisdictions at pp. 11-13. With respect to arbitration and the modern lex mercatoria, see also Tetley, International Conflict of Laws. Common, Civil and Maritime, Blais, Montreal, 1994, at pp. 417-419 (hereinafter Tetley, Conflict); Tetley, Lex Maritima at pp. 134-142.

15.

. See generally W. Tetley, Conflict at pp. 212-219.

16.

. Among the many such international organizations are the Baltic and International Maritime Council (BIMCO), the International Shipowners' Association (INSA), the International Association of Independent Tanker Owners (Intertanko), the International Association of Dry Cargo Shipowners (Intercargo); the International Union of Marine Insurance (IUMI), the International Group of P. & I. Clubs, the International Association of Freight Forwarders' Associations (FIATA), the Federation of National Associations of Ship Brokers and Agents (FONASBA), the International Cargo Handling Co-ordination Association (ICHCA), the International Ship Suppliers Agency (ISSA); the International Association of European General Average Adjusters; the International Association of Classification Societies (IACS), the Institute of International Container Lessors (IICL), and the International Association of Ports and Harbours (IAPH).

17.

 The Incoterms are international terms commonly employed in respect of international sale of goods contracts, first developed by the International Chamber of Commerce (ICC) in 1936. The most recent version of the Incoterms is "Incoterms 2000", in force January 1, 2000. See ICC Publication No. 560a, published in September 1999.

18.

. See Appendix "B", infra.

19.

. See examples infra, Part XI(3).

20.

. Ibid.

21.

 U.K., 6 Edw. 7, c. 41.

22.

For example, the New Zealand Marine Insurance Act 1908, No. 112 of 1980, the Australian Marine Insurance Act 1909, No. 11 of 1909 (Cth.) and the Canadian Marine Insurance Act, S.C. 1993, c. 22.

23.

. See Tetley, Conflict at p. 339 and U.S. decisions cited there.

24.

. See, for example, the great similarity of the enumeration of the heads of admiralty jurisdiction as between the U.K.'s Supreme Court Act 1981, U.K. 1981, c. 54, sects. 20(2) and the Canadian Federal Court Act, R.S.C. 1985, c. F-7 sect. 22(2), the Australian Admiralty Act 1988, No. 34 of 1988 (Cth.), sects. 4(2) (enumerating "proprietary maritime claims") and (3) (enumerating "general maritime claims"), the New Zealand Admiralty Act 1973, No. 119 of 1973, sect. 4 and the South African Admiralty Jurisdiction Regulation Act 1983, No. 105 of 1983, sect. 1(1) (definition of "maritime claim").

25.

. See, for example, the U.K. Supreme Court Act 1981, supra at sect. 20(7)(a); the Canadian Federal Court Act, supra, at sect. 22(3)(a); the Australian Admiralty Act 1988, supra, sect. 5(1)(a); the New Zealand Admiralty Act 1973, supra, sect. 4(4)(a), and the South African Admiralty Jurisdiction Regulation Act 1983, supra, sect. 2(1).

26.

. On the history and current characteristics of maritime pre-judgment procedures in both common law and civilian jurisdictions, see generally W. Tetley, "Arrest, Attachment, and Related Maritime Law Procedures" (1999) 73 Tul. L. Rev. 1895.

27.

. See Tetley, Maritime Liens and Claims, at pp. 937, 941-951 and 977-1006.

28.

 Ibid. at pp. 937 and 962-972.

29.

 Ibid. at pp. 937 and 938-941.

30.

. Tetley, Lex Maritima at pp. 139-142. See also Thomas E. Carbonneau, "Rendering Awards with Reasons: The Elaboration of a Common Law of International Transactions" (1985) 23 Colum. J. Transnat'l L. 579; Jan Paulsson, "La Lex Mercatoria dans l'Arbitrage"  [1990] Revue de l'arbitrage 55; René David, L'Arbitrage dans le commerce international, Economica, Paris, 1982.

31.

. René David, The International Unification of Private Law, International Encyclopedia of Comparative Law, vol. II, Chap. 5, Max Planck Institute, Hamburg, 1971 at pp. 56-61. See also Hannu Honka, "Harmonization of Contract Law Through International Trade: A Nordic Perspective"  (1996) 11 Tul. Eur. & Civ. L.F. 111.

32.

For text, see (1987) 18 JMLC 577.

33.

For text, see (1991) 22 JMLC 620.

34.

 For text, see (1991) 22 JMLC 617.

35.

For text, see (1995) 26 JMLC 485.

36.

. The CMI Principles of Conduct for Classification Societies and the accompanying CMI Model Contractual Clauses, published by the CMI in 1999, are intended to become standard-form contracts for use by classification societies contracting with shipowners. See Patrick J.S. Griggs, "Uniformity of Maritime Law - An International Perspective"  (1999) 73 Tul. L. Rev. 1551 at p. 1576.

37.

. For text, see John Schofield, Laytime and Demurrage, 3 Ed., LLP Limited, London, 1996, Appendix. Voylayrules 93 were produced jointly by the Baltic and International Maritime Council (BIMCO), the Federation of National Associations of Ship Brokers and Agents (FONASBA), the Comité Maritime International (CMI), the International Association of Dry Cargo Shipowners (Intercargo) and the General Council of British Shipping (CGBS). They superseded the earlier Charterparty Laytime Definitions 1980. For text, see (1981) 12 JMLC 421.

38.

. ICC Publication No. 500 (1993), in force January 1, 1994. On the importance of the UCP 500, see E.P. Ellinger, "The Uniform Customs and Practice for Documentary Credits - the 1993 revision"  [1994] LMCLQ 377.

39.

 Roy Goode, Commercial Law, 2 Ed., Penguin Books, London, 1995 at p. 985 (hereinafter "Goode").

40.

 For the text of standard BIMCO forms, see BIMCO Forms of Approved Documents, BIMCO, 1999. A listing of such forms is also available on the Internet at http://www.bimco.dk/html/bias/cpe/bcpeformlist.html.

41.

 Barecon "A" is the Standard Bareboat Charter issued by BIMCO in 1974. For text, see John Wilson, Carriage of Goods by Sea, 2 Ed., Pitman Publishing, London, 1993, Appendix 7 at p. 376 (hereinafter "Wilson").

42.

 Barecon "B"  is the Standard Bareboat Charter to be Used for Newbuilding Vessels Financed by Mortgage, issued by BIMCO in 1974.

43.

. Barecon '89 is a 1989 revision and an amalgamation by BIMCO of Barecon "A"  (1974) and Barecon "B"  (1974). For text, see John Hare, Shipping Law and Admiralty Jurisdiction in South Africa, Juta & Co., Ltd, Kenwyn, South Africa, 1999, Appendix 31 at p. 1016 (hereinafter Hare).

44.

 NYPE 1946 is the standard form of Time Charter, approved by the New York Produce Exchange on October 3, 1946. For text, see M. Wilford, T. Coghlin and J.D. Kimball, Time Charters, 3 Ed., LLP Limited, London, 1989 at p. 2 (hereinafter "Wilford 1989").

45.

NYPE '93 is the revision of NYPE 1946, issued by the Association of Ship Brokers and Agents (U.S.A.), Inc. on September 14, 1993. For text, see M. Wilford, T. Coghlin and J.D. Kimball, Time Charters, 4 Ed., LLP Limited, London, 1995 at p. 8 (hereinafter "Wilford 1995"); Hare, Appendix 29 at p. 995.

46.

 Baltime 1939 is the code name of BIMCO's Uniform Time-Charter (Box Layout 1974). For text, see Wilford 1995 at p. 412; Hare, Appendix 29 at p. 1010, Wilson, Appendix 10 at p. 412.

47.

. Asbatime 1981 is the code name for the 1981 revision of NYPE 1946, issued by the Association of Ship Brokers and Agents (U.S.A.), Inc. on June 12, 1981. For text, see Wilford 1989, Appendix E at p. 536; Wilson, Appendix 11 at p. 416.

48.

 Gencon is the Uniform General Charter of BIMCO, as revised in 1922, 1976 and 1994. For text, see Hare, Appendix 30 at p. 1013. For Gencon 1922/1976, see Wilson, Appendix 8 at p. 384.

49.

. Asbatankvoy 1977 is the code name of the Tanker Voyage Charter Party, adopted by the Association of ship Brokers and Agents (U.S.A.), Inc. in October 1977. For text, see J. Cooke, J.. Kimball, T. Young, D. Martowski, A. Taylor, and LeRoy Lamber, Voyage Charters, LLP Limited, London, 1993, Appendix 2 at p. 895.

50.

Conlinebooking is the code name of BIMCO's Liner Booking Note. For text, see BIMCO Forms of Approved Documents, supra; Wilson, Appendix 13 at p. 442.

51.

 Conlinebill is the code name of BIMCO's Liner Bill of Lading, last amended as of January 1, 1978. For text, see BIMCO Forms of Approved Documents, supra.

52.

 Combiconbill is the code name of the Combined Transport Bill of Lading of BIMCO. For text, see Wilson, Appendix 16 at p. 460.

53.

 See the First Schedule to the U.K.'s Marine Insurance Act, 1906, 6 Edw. 7, c. 41.

54.

 See Hare at pp. 736-737.

55.

 For text, see Hare, Appendix 22.1 at p. 953.

56.

 For text, see Hare, Appendix 10 at p. 886. See also the U.S. Open Form Salvage Agreement (codename: MARSALV) of the Society of Maritime Arbitrators, Inc., approved in 1996.

57.

. Saleform 1993 is the code name of Memorandum of Agreement for Sale and Purchase of Ships of the Norwegian Shipbrokers' Association, which form was adopted by BIMCO in 1956, and revised in 1966, 1983, 1986/87 and 1993. For text, see Hare, Appendix 28 at p. 989.

58.

. For Incotermss 2000, see ICC Publication No. 560a.

59.

, For text, see Hare, Appendix 22.2 at p. 956.

60.

 For text, see Hare, Appendix 22.3 at p. 962.

61.

, For text, see Hare, Appendix 22.3 at p. 967.

62.

 For text, see Hare, Appendix 22.3 at p. 969.

63.

 For text, see Hare, Appendix 22.3 at p. 971. Other standard clauses are the Institute Time Clauses (Freight) 1995 and the Institute Time Clauses (Freight) 1995, as well as the American Hull Institute Hull Clauses.

64.

 The Inchmaree Clause is a clause in the hull policy extending the perils to include negligence of

master and crew and other additional perils. For an example of such a clause, see the Institute Time Clauses - Hulls 1995, clause 6.2 and the Institute Voyage Clauses Hulls 1995, clause 4.2.

65.

. A formerly standard clause in a marine insurance policy, meaning that the insurance covers only a total loss and not a partial or percentage loss. F.P.A. is obsolete, now that "A", "B" and "C" cargo clauses are used.

66.

 See W. Tetley, Marine Cargo Claims, 3 Ed., Blais, Montreal, 1988 at pp. 5-8 (hereinafter "Tetley, Marine Cargo"). For an example, see Conlinebill cl. 2.

67.

 See Tetley, Marine Cargo at p. 987 (re liens). For examples, see Conlinebill cls. 11 and 12.

68.

, See Tetley, Marine Cargo at pp. 722-723. For an example, see Conlinebill cl. 14.

69.

 See Tetley, Marine Cargo at pp. 627, 631-633, 677, 842 and 851-852. For an examle, see Conlinebill cl. 15.

70.

 See Tetley, Marine Cargo at pp. 88-98.

71.

See Tetley, Marine Cargo at pp. 248-263. For an example, see Conlinebill cl. 17.

72.

 See Tetley, Marine Cargo at pp. 757-779. For an example, see Conlinebill cl. 18.

73.

. See Tetley, Marine Cargo at pp. 658-661 (deck carriage) and 752-754 (deviation). For an example, see Conlinebill cls. 16 and 19.

74.

. 6 Edw. 7, c. 41.

75.

 S.C. 1993, c. 22.

76.

. See Alex A. Parks, The Law and Practice of Marine Insurance and Average, vol. 1, Cornell Maritime Press, Centreville, Maryland, 1987 at pp. 12 and 16; Leslie J. Buglass, Marine Insurance and General Average in the United States, 3 Ed., Cornell Maritime Press, Centreville, Maryland, 1991 at p. 4; Graydon S. Staring, "Admiralty and maritime law: selected topics"  (1991) 26 Tort & Ins. L.J. 538 at p. 541; Donald M. Waesche, "Choice and Uniformity of Law Generally (Admiralty Law Institute Symposium: Marine Insurance)"  (1991) 66 Tul. L. Rev. 293 at pp. 297-300.

77.

 The UCC was originally adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Law in 1952, and has been amended frequently since then. See text in Uniform Commercial Code, official text 1994, with comments, 13 Ed., American Law Institute and National Conference of Commissioners on Uniform State Laws, Philadelphia, Pennsylvania, 1995.

78.

. For example, the UCC was one of the major sources of inspiration for the drafting of the UNIDROIT Priniciples of International Commercial Contracts 1994.

79.

Loi fédérale sur le droit international privé du 18 décembre 1987, 1988 Feuille fédérale I 5. For an English translation by Jean-Claude Cornu, Stéphane Hankins and Symeon Symeonides, see (1989) 37 Am. J. Comp. L. 193. See also commentary by S. Symeonides, "The New Swiss Conflicts Codification: An Introduction," ibid. at p. 187.

80.

 S.Q. 1991 c. 64. Book X of the Quebec Civil Code 1994, comprising arts. 3076 to 3167 inclusive, was strongly influenced in many provisions by the Swiss Statute on Private International Law 1987.

81.

. Book IV of the Louisiana Civil Code, on "Conflicts of Laws", comprising arts. 14 and 3515 to 3549 inclusive, was enacted by Act No. 923 of July 24, 1991 (1991 La. Acts 923) and came into force on January 1, 1992, and as subsequently amended (with respect to art. 3533 on succession to immovables) by Act No. 257 of June 17, 1997, (1997 La. Acts 257).

82.

. U.K. 1986, c. 45. Mr. Maxwell's death at sea allowed him to avoid the jurisdiction of three courts - admiralty, bankruptcy and criminal.

83.

. 11 U.S.C. 101 et seq.

84.

. Re Maxwell Communications Corporation plc. [1992] B.C.L.C. 465 (High Ct. of Justice).

85.

, W. Tetley, Fairplay magazine, April 23, 1998 at p. 25.

86.

. For the English text with commentary, see J.M Perillo, "UNIDROIT Principles of International Commercial Contracts: The Black Letter Text and a Review"  (1994) 63 Fordham L. Rev. 281. For an incisive study of the Principles and their effects in practice, see Michael J. Bonell, "The UNIDROIT Principles in Practice: The Experience of the First Two Years"  1997-2 Unif. L. Rev. 34.

87.

. Bonell, ibid. at p. 38, noting that both the "black letter"  text and and the comments on the Principles were available in Chinese, English, French, Italian, Portuguese, Russian, Slovak and Spanish, with a German version then in preparation. At the time of Bonell's article, the "black letter"  text of the Principles (without the comments) had already been translated into Arabic, Bulgarian, Czech, Flemish, Hungarian, Korean and Serbian, with a Japanese translation then in preparation.

88.

. Bonell, ibid., at pp. 36-37, listed over sixty law faculties in European, North and South America, Africa and Asia at which the UNIDROIT Principles figured in the courses taught and/or the teaching materials provided.

89.

 See New Netherlands Civil Code (Book 3 (Patrimonial Law in General), Book 5 (Real Rights) and Book 7 (Special Contracts)), Peter P.C. Haanappel & Ejan Mackaay, trans., Kluwer, Deventer, 1990. See also by the same translators, New Netherlands Civil Code Book 8 (Means of Traffic and Transport), Kluwer, The Hague, 1995.

90.

 S.Q. 1991, c. 64, in force January 1, 1994. On the influence of the UNIDROIT Principles on the Quebec Civil Code 1994, see Paul-André Crépeau (with the collaboration of Élise M. Charpentier), The UNIDROIT Principles and the Civil Code of Québec: Shared Values?, Carswell, Scarborough, Ontario, 1998. Crépeau stresses the notions of contractual freedom and contractual justice as the two main shared values of the Code and the Principles. See also the Introductory Essay of that volume by Nicholas Kasirer, "'Values', Law Reform and Law's Conscience", ibid. at pp. xix to xxvii, commenting on how both the UNIDROIT Principles and the Draft Civil Code of Quebec of 1977, prepared by the Civil Code Revision Office which Prof. Crépeau chaired, expressed a "collective conscience" of values shared, on the one hand, by Quebeckers as to the basic values of their droit commun (general law) and, on the other hand, an international collective conscience among the drafters o the Principles as to values to be upheld in international commercial contracts.

91.

 Part One of the Civil Code of the Russian Federation was enacted by Federal Law No. 52-FZ on November 30, 1994 and came into force on January 1, 1995. Part Two was enacted by Federal Law No. 15-FZ of January 26, 1996 and came into force March 1, 1996. See The Civil Code of the Russian Federation, with Introductory Commentary by A.L. Makovsky & S.A. Khokhlov (Peter B. Maggs & A.N. Zhiltsov, eds. & trans.), M.E. Sharpe, Armonk, New York, 1997.

92.

. Bonell, ibid. at pp. 37-38, also noted that individual provisions of the Principles had been referred to in the final Report of the Commission for the Revision of the German Law of Obligations 1992, in the drafts of the Civil Codes of Lithuania and the Czech Republic, the draft Commercial Code of Tunisia and the draft Uniform Law on General Commercial Law then in preparation by the Organization for the Harmonization of Business Law in Africa. The Scottish Law Commission, in its Discussion Paper No. 101, entitled "Interpretation in Private Law", August 1996, also referred to several of the Principles in its proposals for reform of the rules on interpretation of legal acts. Panama has made express reference to the Principles in its new arbitration legislation (Decree No. 5 of July 8, 1999), art. 27 of which permits the arbitral tribunal to rely on the terms of the contract in applying the law governing contractual relations and to "take account of trade usages and practices and of the UNIDROIT Principles of International Commercial Contracts". See UNIDROIT News 1999-3 at p. 3.

93.

 B.S. Selden, "Lex Mercatoria in European and U.S. Trade Practice: Time to Take a Closer Look"  in Golden Gate University School of Law, Annual Survey of International & Comparative Law, vol. 2, 1995, 111 at p. 122, cited by Bonell, ibid. at p. 44, his note 233.

94.

. Tetley, Mixed Jurisdictions at p. 15. The Governing Council of UNIDROIT, at its 78th session in April 1999, approved the addition, as a footnote to paragraph 2 of the Preamble of the Principles, of the text of a model clause to assist parties in incorporating the Principles into their contracts. See UNIDROIT News 1999-3 at pp. 2-3.

95.

 See generally Ole Lando & Hugh Beale, The Principles of European Contract Law, Martinus Nijhoff, Dordrecht, 1995.

96.

. Michael J. Bonell, "The UNIDROIT Principles of International Commercial Contracts and the Principles of European Contract Law: Similar Rules for the Same Purpose?"  1996-2 Unif. L. Rev. 226.

97.

. See the European Parliament's "Resolution on Action to Bring into Line the Private Law of the Member States", O.J.E.C. 1989 C 158/400 of May 26, 1989 and its "Resolution on the Harmonization of Certain Sectors of the Private Law of the Member State"s, O.J.E.C. 1994 C 205/518 of May 6, 1994. See also Ole Lando, "Principles of Eurpean Contract Law: An Aternative or a Precursor of European Legislation?"  (1992) 40 Am. J. Comp. L. 873. See also Kluwer Law International, International Contract Advisor, vol. 4, no. 1, 1998 at p. 6.

98.

. See generally Thomas E. Carbonneau, ed., Lex Mercatoria and Arbitration, rev. ed., Transnational Juris Publications, Yonkers, New York, 1998.

99.

. See Thomas E. Carbonneau, Cases and Materials on Commercial Arbitration, Juris Publishing Inc., Yonkers, New York, 1997 at pp. 565-568. See also Tetley, Lex Maritima at pp. 134-142, particularly at pp. 140-141. See also Klaus Peter Berger, "International Arbitral Practice and the UNIDROIT Principles of International Commercial Contracts"  (1998) 46 Am. J. Comp. L. 129, showing how the UNIDROIT Principles are assisting in creating this new, international arbitral jurisprudence.

100.

. The International Chamber of Commerce, for example, has published three volumes of decisions of its International Court of Arbitration, covering the period 1974-1985, 1986-1990 and 1991-1995 respectively. In the United States, the Society of Maritime Arbitrators, Inc., through the SMA Award Service, publishes approximately 100 SMA maritime arbitral awards annually, the collection now including approximately 3400 such awards dating as far back as the 1950's. SMA awards are also included in the LEXIS research data bank.

101.

. This concept is also one of the key policy considerations governing conflict of laws decision-making, under sect. 6(6) of the Restatement Second of the Conflict of Laws, adopted by the American Law Institute May 23, 1969. See W. Tetley, "A Canadian Looks at American Conflict of Law Theory and Practice, Especially in the Light of the American Legal and Social systems (Corrective vs. Distributive Justice)"  (1999) 38 Colum. J. Transnat'l L. 299 at p. 318 (hereinafter Tetley, A Canadian Looks).

102.

On forum non conveniens generally, see Tetley, Conflict at pp. 529, 802-803 and 819.

103.

 On forum conveniens generally, see Tetley, Conflict at pp. 803-804 and 819.

104.

. This concern is also one of the conflict of laws policy considerations enshrined at sect. 6(7) of the Restatement Second of the Conflict of Laws, supra. See also Tetley, A Canadian Looks at p. 318.

105.

 [1994] 3 S.C.R. 1022. On this landmark Canadian conflicts decision, see W. Tetley, "New Development in Private International Law: Tolofson v. Jensen and Gagnon v. Lucas " (1996) 44 Am. J. Comp. L. 647.

106.

 [1994] 3 S.C.R. at p. 1058.

107.

 88/357 E.E.C. of June 22, 1988, O.J.E.C. L.172/1, July 4, 1988.

108.

 92/49 E.E.C. of June 18, 1992, O.J.E.C. L.228/1, August 11, 1992.

109.

. These Directives have also required the member-States of the European Union to adopt harmonized conflict of laws rules applying, inter alia, to marine insurance risks situated within the territory of the E.U. See Tetley, Conflict at pp. 345-350.

110.

 UN Doc. A/CONF.97/18, adopted at Vienna, April 11, 1980 and in force January 1, 1988. For text, see (1980) 19 I.L.M. 671.

111.

. The Vienna Sales Convention has been applied, as part of the modern lex mercatoria, by the Iran-United States Claims Tribunal. See Watkins-Johnson Co. and Watkins-Johnson Ltd. v. Islamic Republic of Iran (1990) XV Yearbook of Commercial Arbitration 220, cited by Goode at p. 929.

112.

 Adopted June 21, 1985, UN General Assembly Resolution A/40/17 Annex I, reproduced in (1985) 24 I.L.M. 1302.

113.

 Adopted at the twenty-fifth session of UNCITRAL, May 4-22, 1992 and approved by UN General Assembly Resolution 47/34 of November 25, 1992, reproduced in (1993) 32 I.L.M. 587.

114.

 Adopted July 16, 1993, UN Doc A/48/17 Annex and reproduced (1994) 33 I.L.M. 445. See also the UNCITRAL Guide to Enactment of that Model Law, of December 1, 1993, UN Doc. A/CN.9/393 and the subsequent UNCITRAL Model Law on Procurement of Goods, Construction and Services, adopted June 17, 1994 (without superseding the UNCITRAL Model Law on Procurement of Goods and Construction 1993) and the Guide to Enactment of the UNCITRAL Model Law on Procurement of Goods, Construction and Services, UN Doc A/CN.9/403.

115.

Adopted with a Guide to Enactment by the UN General Assembly Resolution 51/62 of December 16, 1996, reproduced (1997) 36 I.L.M. 197.

116.

 Adopted at Vienna, May 30, 1997. For text, see (1997) 36 I.L.M. 1386. See also the Guide to Enactment of that Model Law, UN Doc. A/CN.9/442, reprinted in (1998) 6 Tul. J. Int'l. & Comp. L. 415 at p. 419.

117.

 UN Doc A/CN.9/SER.B/1.

118.

 Adopted August 1987 byUN General Assembly Resolution A/42/17.

119.

 UN Doc A/CN.9/SER.B/3.

120.

 Adopted at Ottawa, May 28, 1988, reproduced in (1988) 27 I.L.M.931.

121.

 Adopted at Ottawa, May 28, 1988, reproduced in (1988) 27 I.L.M. 943.

122.

 For text, see 1999-2 Unif. L. Rev. Appendix I.

123.

 See, for example, the Preliminary Draft Protocol to the Preliminary Draft UNIDROIT Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment, 1999-2 Unif. L. Rev. Appendix II.

124.

 33 U.S.T. 883, 527 U.N.T.S. 189.

125.

 20 U.S.T. 361, 658 U.N.T.S. 163.

126.

 23 U.S.T. 2555, 847 U.N.T.S. 231. UNIDROIT and the American Law Institute are now involved in a joint programme to draft transnational rules of civil procedure. See UNIDROIT News 1999-3 at p. 2.

127.

. See, for example, the UNCITRAL Arbitration Rules 1976; the 1998 ICC Arbitration Rules (International Chamber of Commerce); the LMAA Terms 1997 (London Maritime Arbitrators Association); the SMA Maritime Arbitration Rules 1994 (Society of Maritime Arbitrators, Inc.).

128.

 See, for example, the LMAA FALCA (Fast and Low Cost Arbitration) Rules 1997; the LMAA Small Claims Procedure 1998; the SMA Shortened Arbitration Procedure 1994.

129.

. See, for example, the UNCITRAL Conciliation Rules 1980; the ICC Rules of Conciliation and Arbitration (1998 edition); the LMAA Conciliation Terms 1991; and the SMA Rules for Conciliation 1998.

130.

 UN Doc. A/CONF/188.6, adopted at Geneva, March 12, 1999, not yet in force. For text, see Tetley, "Arrest, Attachment and Related Maritime Law Procedures" (1999) 73 Tul. L. Rev.1895, Appendix at p. 1976 (hereinafter "Tetley, Arrest").

131.

 See Tetley, Arrest at pp. 1965-1966.

132.

 Ibid. at pp.1969-1970.

133.

. Ibid. at pp. 1970-1971.

134.

 R.S.C. 1985, c. M-6.

135.

. On distributive vs. corrective justice generally, see Tetley, A Canadian Looks at pp. 323-326. See also infra, Part XIV(1).

136.

. On the concise style of civil law drafting, as compared with the precise style typical of common law drafting, see Tetley, "Mixed Jurisdictions: Common Law vs Civil Law (Codified and Uncodified) (Part I)"  1999-3 Unif. L. Rev. 1 at pp. 26-27.

137.

 The International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, adopted at Brussels, August 25, 1924 and in force June 2, 1931 (the "Hague Rules"), as amended by the Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, adopted at Brussels, February 23, 1968 and in force June 23, 1977 (the "Visby Protocol 1968"), and as further amended by the Protocol Amending the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading (August 25, 1924, as Amended by the Protocol of February 23, 1968), adopted at Brussels, December 21, 1979, in force February 14, 1984 (the "Visby S.D.R. Protocol 1979"). The Hague Rules 1924, as amended by the Visby Protocol of 1968 and the Visby S.D.R. Protocol 1979, are referred to as the "Hague/Visby Rules". For the text of the Hague Rules 1924, see Tetley, Marine Cargo, Appendix "A" at p. 1111 (official French text) and at p. 1121 (English translation). See also 51 Stat. 233, TS 931, 120 L.N.T.S. 155. For the text of the Visby Protocol 1968, see ibid. at p. 1132. For the text of the Visby S.D.R. Protocol 1979, see ibid. at p. 1139.

138.

 United Nations Convention on the Carriage of Goods by Sea, adopted at Hamburg, March 31, 1978 and in force November 1, 1992. For text, see Tetley. Marine Cargo, Appendix "A"  at p. 1143.

139.

. Ibid. at p. 27.

140.

. Adopted at Brussels, December 21, 1979 and in force February 14, 1984..

141.

 The Hague/Visby Rules 1968/1979 came into for Japan on March 1, 1993.

142.

 Canada adopted the Hague/Visby Rules 1968/1979 by the Carriage of Goods by Water Act, S.C. 1993, c. 21, which came into force May 6, 1993.

143.

 Supra, note 86.

144.

,(1980) 19 I.L.M. 671.

145.

 Goode at p. 927.

146.

 See text at Tetley, Arrest, Appendix at p. 1976.

147.

. See, for example, the U.K. Supreme Court Act 1981, 1981, c. 54, sect. 21(4)(b)(i) and (ii) and Canada's Federal Court Act, R.S.C. 1985, c. F-7, sects. 43(3) and (8).

148.

 See the resolutions of the European Parliament of May 26, 1989 and May 6, 1994, supra, note 94. See also H. Patrick Glenn, "La civilisation de la common law" Mélanges Germain Brière, E. Caparros, dir., Collection Bleue, Montreal, Wilson et Lafleur Ltée, 1993 at pp. 595-616, an amended version of which was also published in Revue internationale de droit comparé 3-1993 at pp. 559-575. See also by the same author, "Vers un droit comparé intégré?"  Revue internationale de droit comparé 4-1999 at pp. 841-852.

149.

 Presses universitaires de France, Paris, 1999.

150.

 Professor at the University of Tilburg and Associate Professor at the Université de Lille 2.

151.

. See also Pierre Legrand, "Le primat de la culture"  in Le Droit Privé Européen, Pascal de Vareilles-Sommières, director, Economica, Paris, 1998, Chap. 1 at p. 1.

152.

. Le droit comparé, supra, especially at pp. 75-97. See also Tetley, Mixed Jurisdictions, Part I, 1999-3 Unif. L. Rev. 1 at pp. 24-30, where many of the same points of comparison between the civil law and the common law are reviewed.

153.

 Supra, note 86.

154.

 Aristotle, Nicomachean Ethics, Terence Irwin, trans., 1985.

155.

. Ibid. at p. 124, note 33.

156.

. Ibid. at paras. 1131a29-b12.

157.

. Ibid. at paras. 1132b18-20.

158.

. Ibid. at paras. 1132a21-32.

159.

 Ernest Weinrib, "Corrective Justice"  (1992) 77 Iowa L. Rev. 403 at p. 542, cited by Tetley, A Canadian Looks at p. 325. See also Peter Benson, "The Basis of Corrective Justice and Its Relation to Distributive Justice"  (1992) 77 Iowa L. Rev. 515; Stephen R. Perry, "The Moral Foundations of Tort Law"  (1992) 77 Iowa L. Rev. 449.

160.

. Tetley, A Canadian Looks at pp. 325-329.

161.

 Protocol to the International Convention on Civil Liability for Oil Pollution Damage, adopted at Brussels, May 25, 1984, not in force. For text, see Comité Maritime International (CMI), Handbook of Maritime Conventions, Matthew Bender & Co., Inc., New York, 1998, Doc. 32 (hereinafter CMI Handbook). Protocol to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, adopted at Brussels, May 25, 1984, not in force. For text, see CMI Handbook, Doc. 36.

162.

 International Convention on Civil Liability for Oil Pollution Damage, adopted at Brussels, November 29, 1969, in force June 19, 1975. For text, see CMI Handbook, Doc. 30; 973 U.N.T.S. 3.

163.

. International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, adopted at Brussels, December 18, 1971, in force October 16, 1978. For text, see CMI Handbook, Doc. 34; 1110 U.N.T.S. 57.

164.

, Act of August 18, 1990, Pub. L. No. 101-380, 104 Stat. 484, 33 U.S.C. 2701-2761.

165.

. On flags of convenience and related legal problems related to the law of the flag principle in private international maritime law, see Tetley, Conflict at pp. 212-219.

166.

, Supra, note 138.

167.

 Convention for the Safety of Life at Sea, adopted at London, November 1, 1974, in force May 25, 1980, 32 U.S.T. 47, 1184 U.N.T.S. 278.

168.

 International Convention for the Prevention of Pollution from Ships, adopted at London, November 2, 1973, (1973) 12 I.L.M. 1319, and the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 1973, adopted at London, February 17, 1978, 17 I.L.M 546. MARPOL 1973/78 came into force on October 3, 1983, with the exception of various Annexes, in force at subsequent dates. See Appendix "B"  for details.

169.

. IMO adopted Resolution A.500(XII) in 1981, to address the concerns of developing countries about the frequency of technical amendments to conventions and the difficulties of their implementing them.

170.

 Fairplay, December 23/30, 1999, "IMO and the future"  40 at p. 41.

171.

. Supra, note 138.

172.

 Supra, note 137.

173.

 Ibid.

174.

 International Convention for the Unification of Certain Rules Relating to Maritime Liens and Mortgages, adopted at Brussels, May 27, 1967, not in force. For text, see CMI Handbook, Doc. 18.

175.

. United Nations Convention on the Law of the Sea, adopted at Montego Bay, Jamaica, December 10, 1982, in force November 16, 1994. For text, see 1833 U.N.T.S. 3.

176.

 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, adopted at London, July 7, 1978, reprinted in 6D Benedict on Admiralty, (Frank Wiswall, ed.), 7 Ed., 1998, Doc. No. 14-6 at 14-483.

177.

. The Collision Regulations 1972 as amended were enacted by the Convention on the International Regulations for Preventing Collisions at Sea, adopted at London, October 20, 1072, in force July 15, 1977, 28 U.S.T. 3459, T.I.A.S. No. 8587.

178.

 Loi no 66-420 sur les contrats d'affrètement et de transport maritimes (on contracts of chartering and of carriage of goods by sea) of June 18, 1966, (Journal officiel June 24, 1966 at p. 5206); Loi no. 67-5 portant statut des navires et autres bâtiments de mer (on the status of ships and other sea-going vessels) of January 3, 1967, (Journal officiel January 4, 1967 at p. 106); Loi no. 67-522 sur les assurances maritimes (on marine insurance) of July 3, 1967, (Journal officiel. July 4, 1967 at p. 6648) (later codified as Book I, Title VII of the Code des assurances by Decree no 76-666 of July 16, 1976 (Journal officiel July 21, 1976 at p. 4341); Loi no. 67-545 relative aux événements de mer (on events at sea) of July 7, 1967 (Journal officiel July 9, 1967 at p. 6867); Loi no. 69-8 relative à l'armement et aux ventes maritimes (on shipowning and maritime sales) of January 3, 1969 (Journal officiel January 5, 1969 at p. 200).

179.

 CMI Newsletter No. 1999-3.

180.

 Ibid. at pp. 7-8.

181.

 International Convention on Maritime Liens and Mortgages, adopted at Geneva, May 6, 1993, not yet in force. For text, see CMI Handbook, Doc. 47.

182.

. Because the classification societies and the shipowners failed to agree on a maximum limit of liability to be inserted in the Model Contractual Clauses, limitation figures were left in blank, to be filled in by the parties later, in the hope of an eventual agreement. See CMI Newsletter No. 1999-3 at p. 8.

183.

 Patrick J.S. Griggs, "Uniformity of Maritime Law - An International Perspective"  (1999) 73 Tul. L. Rev. 1551 at p. 1582. General average reform as well by the CMI was and is the subject of multiple questionnaires and proposals with alternatives, with very unsatisfactory results.

184.

. Convention for the Safety of Life at Sea, adopted at London, June 17, 1960, 16 U.S.T. 185, 536 U.N.T.S. 27.

185.

 See Lei Shi, "Successful Use of the Tacit Acceptance Procedure to Effectuate Progress in International Maritime Law"  (1998-99) 11 U.S.F. Mar. L.J. 299 at pp. 304-305 (hereinafter "Lei").

186.

. Ibid. at p. 329.

187.

. Convention for the Safety of Life at Sea, adopted at London, November 1, 1974, in force May 25, 1980, 32 U.S.T. 47, 1184 U.N.T.S. 278.

188.

 Protocol to the International Convention on Civil Liability for Oil Pollution Damage, adopted at London, November 27, 1992, in force May 30, 1996, reprinted in CMI Handbook, Doc. 33, and the Protocol to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, adopted at London, November 27, 1992, in force May 30, 1996, reprinted in CMI Handbook, Doc. 37.

189.

 CMI Handbook Doc. 30; 973 U.N.T.S. 3.

190.

 CMI Handbook Doc. 34; 1110 U.N.T.S. 57.

191.

. See art. 15 of the 1992 Protocol to the CLC Convention 1969 and art. 33 of the 1992 Protocol to the Fund Convention 1971.

192.

 SOLAS Convention 1974, chap. 5, reg. 8-1, reprinted in 6D, Benedict on Admiralty, (Frank Wiswall, ed), 7 Ed., 1998, Doc. No. 14-1 at 14-249.

193.

 Supra, note 187.

194.

 Adopted at London, July 7, 1978 and in force April 28, 1984.

195.

. See Lei at p. 329. See also "STCW Amendments Enter Into Force" IMO News, No. 1, 1997 at p. 3. The STCW Convention is in force for 133 member-States of IMO, which account for 98.11% of the world's merchant tonnage.

196.

. See Antonio J. Rodriguez & Mary Campbell Hubbard, "The International Safety Management Code: A New Level of Uniformity"  (1999) 73 Tul. L. Rev. 1585 at pp. 1589-1591 (hereinafter "Rodriguez & Hubbard").

197.

 The "I.S.M. Code"  was first enacted as an Annex to IMO Resoluton A.741, adopted November 4, 1993.

198.

. Rodriguez & Hubbard, at p. 1591.

199.

 Ibid. at pp. 1593-1594.

200.

. Ibid. at p. 1594.

201.

. Ibid. at pp. 1599-1610 and 1617-1618.

202.

. The United States, for example, has promulgated the I.S.M. Code by way of the Coast Guard Authorization Act of 1996, Pub. L. No. 104-324, 46 U.S.C. 3201-3205 (1997), with implementing regulations adopted in 33 C.F.R. pt 96 (1998).

203.

 Fairplay Daily News Service, January 19, 2000.

204.

 Fairplay Daily News Service, January 20, 2000.

205.

 Fairplay Daily News Service, February 1, 2000.

206.

 Adopted at Rome, June 19, 1980, in force April 1, 1991, 80/934 EEC, O.J.E.C. No. L. 266/1, October 9, 1980. For text, see Tetley, Conflict, Appendix "F"  at p. 1032, with a brief commentary, ibid. at p. 1045.

207.

 Adopted at Brussels, September 27, 1968 and in force February 1, 1973 and subsequent dates, resulting from Accession Conventions expanding the membership of the European Union. See text of the Convention, as amended by the 1978 Accession Convention (adding the U.K., Denmark and Ireland to the E.U.), in O.J.E.C. 1978 L. 304/77, October 30, 1978.

208.

. Adopted at Lugano, September 16, 1988, O.J.E.C. 1988 L 391/9. The Lugano Convention 1988 is virtually identical to the Brussels Convention 1968, but is designed to provide uniform rules governing jurisdiction and the recognition and enforcement of foreign judgments in civil and commercial matters as between the courts of the European Union and those of the European Free Trade Association.

209.

 E.E.C. 88/357, O.J.E.C. L. 172/1, July 4, 1988.

210.

. E.E.C. 92/49, O.J.E.C. L. 228/1, August 11, 1992.

211.

 Treaty on International Commercial Navigation Law, adopted at the Second South american Congress of Private International Law, at Montevideo, Uruguay, March 19, 1940. For text, see (1943) 37 Am. J. Int.'l. L. 109. See also excerpts in Tetley, Conflict, Appendix "B"  at p. 1016.

212.

 Adopted at New York, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 3. This Convention is enforced in the U.S. pursuant to the United States Arbitration Act of 1970, Pub. L. No. 91-368, 84 Stat. 692, 9 U.S.C. 201-208(1999).

213.

The draft International Convention for the Unification of Certain Rules Concerning Civil Jurisdiction, Choice of Law and Recognition and Enforcement of Judgments in Matters of Collision, approved by the CMI Conference at Rio de Janeiro on September 30, 1977, but which is not in force. For a commentary and the text, see [1978] LMCLQ 14.

214.

. Adopted June 21, 1985. For text, see (1985) 24 I.L.M. 1302.

215.

 Adopted by the Special Commision of the Hague Conference on Private International Law on October 30, 1999 and expected to be submitted to a diplomatic conference in the autumn of 2000. For text, see the website of the Hague Conference, http://www.hcch.net/e/workprog/jdgm.html.

216.

. For one such methodology, see Tetley, Conflict at pp. 37-43.

217. S.D.R. ("D.T.S.- Droits de tirage spéciaux") [Span.: "Derechos especiales de giro" ] [Ital.: "D.S.P., diritti speciali di prelievo"] - Special Drawing Rights are an international value used to provide a regular comparative evaluation by the International Monetary Fund of the currency of member nations. Value of a national currency will rise in S.D.R.s as the value of the national currency rises on the world market. S.D.R.s therefore are a fair evaluation of the comparison of national currencies one with another and as such useful as a valuation for limitation in an international convention. If S.D.R.s adjust to the rise and fall of the currency of a single nation as compared with other nations, they do not adjust to world inflation and as a result, the limitation of liability in S.D.R.s in various conventions has fallen as all currencies have inflated. In this respect, S.D.R.s are unsatisfactory. Gold does adjust to world inflation over very long periods of time, but in the short run suffers violent fluctuations in value. Gold has also been controlled in price by many countries at various times. Both S.D.R.s and gold suffer from the reluctance of many nations to comply with a market evaluation of their currency.

The value of the S.D.R. is equal to the market value of fixed amounts of five currencies, the U.S. dollar 43%, the German mark 18%, the French franc 10%, the British pound sterling 12% and the Japanese yen 17%. (Up to December 31, 1980, there were 16 currencies in the basket). If any of the component currencies weaken, the assumption is that other component currencies will strengthen, thus moderating fluctuations in the S.D.R.'s value.

218. Poincaré gold franc (p.g.f.)- One p.g.f. is 65.6 milligrams of gold of millesimal fineness 900. It was first defined by the French Law of June 25, 1928 and named after Raymond Poincaré, the French Prime Minister who stabilized the currency of France.

The p.g.f. is worth approximately 13 cents CDN or approximately 10 cents US.