Codification of Maritime Law

Challenges, Possibilities and Experience

Zuzanna Pepłowska-Dąbrowska, Justyna Nawrot, Zuzanna Pepłowska-Dąbrowska, Justyna Nawrot

• Éditeur: Informa Law from Routledge
• Année: 2019
• ISBN:
  9781000737004
• Édition: 1
• Sujet: Law
• Sous-sujet: Law Theory & Practice

This book is the first of its kind to explore the problems inherent in the unification of maritime law. Featuring contributions from leading experts at European maritime law research centres, it considers international conventions, current maritime practice, standard forms and recently adopted or drafted national codifications of maritime law from the codification point of view.

The book is divided into four parts which represent different views on the main topic. Part I gathers chapters dedicated to different aspects and methods of unification of maritime law on a global scale, as well as several specific issues of maritime law from the regulatory point of view. Part II of the book consists of those papers that centre around the issue of transport of goods. Part III is dedicated to codifications of carriage of passengers, cruise law and leisure navigation. Finally, Part IV addresses national codifications of maritime law.

Codification of Maritime Law: Challenges, Possibilities and Experience seeks to provide common ground for future unification of maritime law, which makes the book useful both for private and public maritime lawyers and states' maritime administrations worldwide.

PART I
GENERAL REMARKS

CHAPTER 1
Codification

Problems of differing legal cultures

Professor Francis Reynolds

1 Introduction

This book is directed to codification of maritime law. Its topic, to some extent at least, is linked to the Comité Maritime International (CMI) project for the ‘Compilation of Selected Principles of the Lex Maritima’, which obviously connects with an article on the same subject published by Professor Eric Van Hooydonk in the Journal of International Maritime Law of 2014,¹ in which much of the same wording appears.

1 (2014) 20 Journal of International Maritime Law 170, containing many valuable citations to other material.

This first chapter starts with the general idea of codification of private law, and more specifically of contract law, where scepticism is expressed as to the possibility of achieving much in the foreseeable future. But there is no intention of being so negative on the maritime law front, so, after expanding this first point about more general codification, the chapter goes on to be cautiously optimistic about codification of maritime law, which is the subject of this book. It is not directed to domestic codification, which is a matter of rearranging a system of national law even if it uses international maritime concepts and seeks to conform with them.

2 Codification of private law in general

It is tempting to think of the idea of international codification as the result of, or at least a catalyst for, a process in which legal systems all gradually move into fusion of their private law. A codification of international maritime law can be seen as part of such a movement.

Indeed, a point made in support of such an exercise in Professor Van Hooydonk’s article, and also in material concerning the CMI project, is that there are already, in Europe at least, several code-like compilations now available which look to the eventual prospect of amalgamating private law, or part of it, over at least the European Union. These include the Principles of European Contract Law, the UNIDROIT Principles of International Commercial Contracts, the Draft Common Frame of Reference, and the Vienna Convention on the International Sale of Goods (CISG).²

2 United Nations Convention on Contracts for the International Sale of Goods (CISG) (Vienna, 1980).

It is certainly true that in commercial private law the appropriate answers to a legal problem posed tend to be similar in result whatever system of law is applied to them, as all arbitrators know. This undoubted fact might tempt one to think that a single route to them ought to be discoverable. And the obvious way to mark this route would be by agreeing some form of code.

But in this broad context one needs to beware. One needs to be sceptical of international codification because similarity of result may hide very considerable differences between the legal cultures used to achieve it. An example might be given of a stage on which the actors enter from different doors but meet in the centre on equal terms. But they intend to return to their own doors in due course.

I am not qualified to comment on differences among civil law countries, almost all of which have in the context of private law their own codes; but certainly the difference between civil and common law countries is very considerable; and even treating all civil law countries as one for this purpose (which it is probably not right to do), neither civil law nor common law is really going to give up its legal culture or approach to achieve uniformity in the foreseeable future, however plausible a project to achieve this may appear. It takes a long time to train as a lawyer, both as regards theory and experience, and few lawyers are going to set to acquire an armoury of completely new tricks (which perhaps they had to when the Code Napoleon came in, and perhaps again in 1900 in Germany: details of the reactions of practitioners to the transitions would be interesting).³

3 Nordic legal systems are not discussed here.

With that starting point I would like now to look at some of the existing compilations which are cited as part of the general reasons for going forward with codification.

The Principles of European Contract Law (PECL), drafted under the auspices of a Danish lawyer, and having a modest common law input, are occasionally helpful, but sometimes unfamiliar: for example, parts of them are based on the distinction between direct and indirect representation, a distinction completely unknown to most common lawyers.

The UNIDROIT Principles of International Commercial Contracts in fact make a point of avoiding that distinction; and although, like the PECL, they are largely the work of academics, they are in general obviously simpler and so more useful as a basic resource for contract drafters and arbitrators. Indeed, that is largely how they are presented.

The more recent and more elaborate Draft Common Frame of Reference (DCFR) is largely German in outlook: it would be interesting to know how a French-trained lawyer would view it, though it does not resemble the French Civil Code, at any rate before the recent changes. But although it is most interesting read from a comparative viewpoint and is presented as no more than a ‘legislator’s toolbox’, there are not many new solutions or techniques that a common lawyer would find helpful to use and develop.

All these three are worthwhile projects. But they all – even the UNIDROIT Principles, which are the most commercial-looking in style – contain general propositions the application of which is going to require a legal culture on which to fall back for the purposes of interpretation and gap filling. This is where different legal cultures cause differences for lawyers seeking to use such codifications. This factor reduces the capacity of such codifications to solve disputes. The main genuinely international, worldwide, use of such codifications is going to be for arbitrators, who may fall back on them to find authority for obvious general propositions – for instance that, in general, failure to respond to a contractual offer does not usually import that it has been accepted. All arbitrators know that the answer to a legal problem is usually fairly easy: the problem is to reason the answer out within the framework of the applicable law in a way acceptable to disputing parties. For this all lawyers know that one may need support, what common lawyers call ‘authority’, and the existing codes may be helpful.

There have in fact been proposals in England for a contract code: one was started for English and Scots law soon after our Law Reform Commission⁴ was established in 1965. It was eventually finished (by a single senior lawyer, Mr Harvey McGregor QC) and published (surprisingly) in Italy in 1993 under the auspices of Professor Giuseppe Gandolfi. But although Prof. Gandolfi said that the draft Code ‘can be compared to the landing of the Apollo 11 team on the moon . . . or the fall of the Berlin Wall’, nothing has happened since and 25 years later the text already looks dated. Recently there is another draft by Professor Andrew Burrows, this time specifically presented as a restatement of existing case law, albeit in code form. This is illuminating for English common law, but I do not see it facilitating a European contract code.

4 Officially the Law Commission for England and Wales. The Scottish Law Commission was and is separate.

The Vienna Convention on the International Sale of Goods (CISG) requires separate consideration. It is different from the above, as it is already an operative international instrument prepared with more general international consultation than the other three, though largely with theoreticians rather than practitioners – something common lawyers would regard as a disadvantage. It now operates in many countries; but it has not been adopted in the UK, and still looks unfamiliar to common lawyers even though it is sometimes claimed to use some common law solutions.

CISG could have been be adopted in the United Kingdom from the beginning; but there was no movement to do this; and now there is so much, mostly German, input already existing that for a new country to adopt it would be difficult – especially as there is no central tribunal to give a lead in official interpretation. Some other common law countries have adopted CISG (though it is often then excluded by routine contract terms in those countries): the few decisions in the US and Australia do not show much understanding when they go beyond simple matters such as quality requirements. There has been little interest in CISG in the UK; nowadays we say ‘fine, but if you choose English law we will give you different rules’. In the UK we have a much older basic law called the Sale of Goods Act (which is wider than CISG because it covers the topic of property transfer): but this usually provides no more than pointers, and in fact a judgment on a commercial international sale would usually contain mostly pure common law reasoning and little reference to the Act.

On the other hand, to take a more recent example which is actually in the maritime sphere, the Rotterdam Rules could be acceptable to shipping lawyers in the UK, as they are specialised and were formulated with very extensive international participation; and, as of now, everyone would start afresh on a level playing field. Their prospects, however, seem doubtful, for reasons well known.⁵

5 They are particularly opposed by freight forwarding interests.

Now we return to the overall idea of codification of commercial law or parts of it. Within Europe there may be some feeling among codifiers that common law is an odd man out – operative only in England and Ireland (Scots law is different); and that these countries ought to conform and could do so if they were willing to make a few changes. So it may be tempting to say at present that as regards the EU, if the UK leaves the Union, only Ireland remains and there need be little problem (as there is not with Louisiana in the United States).

I cannot answer for the Irish, but even if this is true in the EU context, one has to remember that in the international context there is a huge range of other common law countries – the USA, Canada, Australia, New Zealand, Singapore, Hong Kong, to which we can add the countries of the Indian subcontinent (maybe excluding Myanmar), Malaysia, Anglophone Africa, parts of the West Indies, and some Pacific islands. All these use what is in some respects a rival methodology. So it is not possible to get rid of the common law approach simply by squeezing it out in Europe.

Common law systems do, of course, vary within themselves, as is the case with civil law countries. The most obviously different within them is the law of the United States. Though the US is a common law country – in some ways the nation was founded on common law values – the approach there, while readily comprehensible to a non-US commo...