A SURVEY OF THE JURISDICTION RULES IN UNIMODAL TRANSPORT CONVENTIONS AND THEIR IMPACT ON INTERNATIONAL MULTIMODAL TRANSPORT OF GOODS CONTRACTS.

• Author: Zhu, Ling

I INTRODUCTION

Jurisdiction means the authority of a court or official organisation to hear and decide a controversy or dispute. Often, the determination of civil jurisdiction is the precondition for a court in one country to accept and hear a case involving foreign elements. (1) A conflict of jurisdictions often appears in foreign-related civil disputes, which, different from domestic transactions, may be exposed to different legal systems. (2)

Since the introduction of containerisation into international shipping and trade in the 1960s, multimodal transportation has become a very important means of transporting goods from their place of origin to the place of destination. Multimodal transport may be operated both domestically and internationally; it frequently involves an international dimension, either because the parties are resident in different countries, or because performance of the contract takes place in a country other than that in which the contract was concluded. Therefore, it is likely that goods are carried through several different jurisdictions before reaching their final place of destination.

General conditions of carriage sometimes contain jurisdiction clauses whereby claimants are restricted to bringing action against the carrier only by the contractual agreement. For instance, one multimodal transport (MT) bill of lading provides:

Clause 5: law and jurisdiction Disputes under this MT Bill of Lading shall be determined by the courts and in accordance with the law at the place where the [Multimodal Transport Operator] MTO has his principal place of business. (3) This clause appears to oblige the parties to sue in a particular court. (4) However, any term in a contract may have multiple different interpretations in different jurisdictions. (5) In addition, such a jurisdiction clause may not always be supported by courts of law, especially if the court considers that the clause is being used to circumvent its national mandatory law. It also happens that the contract does not contain any jurisdiction clause. In that case, parties may agree on the jurisdiction after the dispute arises; or, alternatively, the parties may be given the right to choose the court according to domestic law or conventions.

Since situations vary, a set of jurisdiction rules has become necessary for the multimodal transportation of goods. Otherwise, questions would arise as to where to institute court proceedings in a potential dispute. However, the present legal and regulatory framework regulating international multimodal transport consists of a mix of international conventions designed to regulate unimodal carriage, along with diversified regional, sub-regional and national laws, as well as the standard contract terms created by the industry. A lack of uniform rules for regulating the multimodal transport of goods can result in a varied application of liability rules, which then affects the parties' consideration of forum shopping. In contrast, the rules regulating unimodal transport such as sea carriage and air carriage have largely been unified and harmonised. As a matter of fact, most unimodal conventions on the carriage of goods have jurisdictional provisions to control forum shopping, and seek to constrain certain choices of court agreements that may influence the right of the weaker party to get justice. These unimodal transport conventions regulate the jurisdiction by designating several forums from which plaintiffs can choose. In addition, some of them even contain specific provisions for a debatable 'expanded jurisdiction'. Against such a background, this article aims to assess the jurisdiction rules in unimodal transport conventions, and to discuss the impact of them on the jurisdiction issues arising from multimodal transport of goods contracts.

II JURISDICTION RULES INTHE UNIMODALTRANSPORT CONVENTIONS

1. Carriage of goods by sea

   There are currently three sets of rules applicable to sea carriage: the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, and Protocol of Signature ('Hague Rules'), (6) the Hague Rules as amended by the Brussels Protocol ('Hague-Visby Rules'), (7) and the United Nations Convention on the Carriage of Goods by Sea ('Hamburg Rules'). (8)

   The Hague Rules were adopted by many States, including practically all maritime countries. The procedures in the Hague Rules allow contracting countries to give effect to the rules by incorporating them within their domestic legal systems in an appropriate form. (9) The rules were revised by the Visby Rules contained in a Protocol signed in 1968. There is no provision on jurisdiction in the Hague Rules or Hague-Visby Rules--the matter was deemed to be left to the national laws of the contracting States. This is because the countries that gave effect to the Hague Rules could not agree to a clause in the rules that permits a carrier to escape the mandatory minimum liability by shopping for the jurisdiction of another country. (10) Since the application of the Hague Rules and Hague-Visby Rules is almost uniform, the lack of jurisdiction rules are rarely considered to be a drawback.

   At the planning stage of the Hamburg Rules, the idea that the convention should include jurisdictional clauses was initiated for protecting shippers from onerous forum provisions in bills of lading. (11) The idea of including jurisdictional rules led to four different proposals. The first proposal was to cancel all jurisdictional regulations and leave the problem to national laws. The second proposal called for inclusion of a jurisdictional regulation that declares any foreign jurisdictional rules void. In stark contrast to the second proposal, the third proposal was to contain a clause that gives express recognition to foreign jurisdictional rules. The fourth proposal was to provide specific alternative jurisdictions. (12) Finally, Article 21 of the Hamburg Rules provides that the plaintiff is entitled to choose among a long list of competent forums. (13)

   By following Article 21, it is not difficult to ascertain the following: First, it is clear that the plaintiff can institute a claim in the place of residence of the defendant only when there is no principal place of business, or when it is difficult to identify the principal place of business. Therefore, the Hamburg Rules prefer the principal place of business to the habitual residence of the defendant. (14)

   Secondly, plaintiffs can also institute their claims at the place where the contract is made when the defendant has maintained there a place of business, and the contract was made through a branch or agency. (15) But it is important to stress that the contract must be entered into through a branch or agency established in that country, and the defendant must have a business place in that country. If the contract was formed through other means, that is, not by a branch or agency in the same country, or if the defendant does not have a business place in the country, then, based on the Hamburg Rules, a court at the place of the formation of the contract will not have jurisdiction. The exact definition and interpretation of the word 'branch' and 'agency' is debatable, since the Hamburg rules do not provide a solution. Therefore, when deciding whether a contract was formed though a branch or an agency, controversy may arise. (16)

   Thirdly, the plaintiff could bring the claim at the port of loading or the port of discharge (17) as an additional alternative forum. The convention does not require that the ports must be contractually agreed ports. Thus, if there is any discrepancy between the contractually agreed port and the port where the goods are actually loaded or discharged, the latter may prevail. In addition, if there are consecutive carriers, the port of loading seems to mean the port where the goods were first loaded, and the port of discharge means the destination or the end of the carriage by sea according to the contract. (18)

   Fourthly, the Hamburg Rules also recognise any additional place agreed in the contract. (19) This actually gives recognition to the autonomy of parties, making it more flexible for them to add additional jurisdictions other than those identified in Article 21; however, the parties can expand the alternative jurisdictions given in the convention itself but, subject to Article 23 of the convention, they cannot use the contract to restrict the available options. (20) The practical significance of this article is less clear, since parties commonly lack the motivation to provide an additional jurisdiction when they cannot avoid other jurisdictions provided in the convention. (21)

   Lastly, taking note of the special shipping environment, the convention provides an additional choice, namely that the plaintiff can bring the claim in the forum where either the carrying ship or any other ship of the carrier was arrested. (22) However, for protection of the defendant, the claimant needs to move the claim to one of the jurisdictions listed in Article 21(1) if the defendant provides sufficient security to cover any later judgment awarded. (23) Nevertheless, it is interesting to note that the Hamburg Rules, in Article 21 (5), states that after a claim has arisen any agreement between parties designating the place where the claimant may bring an action is effective. Thus, parties may agree upon the bringing of an action in a jurisdiction other than one of those mentioned above. (24)

   By providing different choices of forum, the Hamburg Rules appear to avoid too rigorous a restriction of contractual freedom of the parties, and to ensure that the claimant has a sufficient choice of courts at his disposal. However, such a long list may at the same time lead to forum shopping, thus becoming subject to different procedural rules, taking up extra time, affecting the level of compensation, and other issues. (25)

2. Carriage of goods by air

   The first...