1 Case Comment: The House of Lords decision in The Starsin. (published in (2004) 35 JMLC 121-139) By Prof.

William Tetley, Q.C. I. Introduction The House of Lords in The Starsin1 has ruled on four interesting and important matters. Unfortunately, in answer to the first question, they decided that the shipowner was not the carrier in a normal carriage of goods by sea/bill of lading case. Having decided that only the charterer was the carrier, has led the Court, may I suggest respectfully, into deeper and deeper water as concerns the three other matters. In fairness, it must be said that the counsel in first instance, in the Court of Appeal, and the House of Lords refused or failed to plead that both the owner and the charterer could have been the carrier. The three other matters are: (i) whether the shipowner (now not the carrier) may benefit from the Himalaya clause, (ii) who has the right to claim in tort from the non-carrier/shipowner, and (iii) could the cargo owners have claimed in bailment? II. The Demise Clause, Rule 3(8) and International Law (The Third Alternative) 1) Both the shipowner and the charterer The first question concerned the validity of demise and identity of carrier clauses in bills of lading. It was held that only the charterer was the carrier, having (through agents) signed the front of the bills of lading as carrier, as opposed to the shipowner, who was identified in barely legible printed clauses on the back of the bills. Demise clauses found in bills of lading stipulate that the sole carrier is the shipowner, unless the ship happens to be chartered by demise, when the charterer is deemed to be the carrier. The similar identity of carrier clause simply states that the contract of carriage evidenced by the bill of lading is between the Merchant and the Owner of the vessel. The debate in The Starsin in first instance2, in appeal3 and in the Lords (apart from briefer considerations of the Himalaya clause, of suit in tort and of bailment) was founded on contradictions between the front and back of the bills of lading, each of which contained both a demise clause and an identity of carrier clause. In particular, the courts inquired whether the master or agent signed on

Professor of Law, McGill University; Distinguished Visiting Professor of Maritime and Commercial Law, Tulane University; Counsel to Langlois Gaudreau OConnor of Montreal (e-mail: william.tetley@mcgill.ca). The author is indebted to Robert C. Wilkins, B.A., B.C.L. (robert.wilkins@mcgill.ca), as well as to Vanessa Rochester (e-mail: vanroch@hotmail.com), a third-year student at the Faculty of Law of McGill University, for their assistance in the preparation and correction of the text. 1 Homburg Houtimport B.V. v. Agrosin Private Ltd. and others (The Starsin), [2003] 1 Lloyds Rep. 571; 2003 AMC 913; [2003] 2 All ER 785 (House of Lords: Lord Bingham of Cornhill, Lord Steyn, Lord Hoffmann, Lord Hobhouse of Woodborough, Lord Millett). 2 Homburg Houtimport B.V. v. Agrosin Private Ltd. and others (The Starsin), [2000] 1 Lloyd's Rep 85. Queens Bench Division (Com. Ct.) (Colman, J.). 3 Homburg Houtimport B.V. v. Agrosin Private Ltd. and others (The Starsin), [2001] 1 Lloyd's Rep 437. Court of Appeal (Sir Andrew Morritt, V-C, Chadwick and Rix, L.JJ.).

2 behalf of the shipowner or the charterer i.e. were these shipowner`s bills of lading or charterers bills? There is, however, a third possible alternative, which is that both the shipowner and the charterer are the carrier and cannot be otherwise, if they each carry out any of the responsibilities under the Hague/Visby Rules4. Rule 3(8), it will be remembered, is of a public policy/order nature and forbids any clause, covenant, or agreement in a contract of carriage relieving the carrier or the ship from responsibility under the Rules. Because the shipowner and the charterer in fact share responsibilities in loading, carrying, caring for and discharging cargo, they should both be the carrier in respect of third parties. To allow them to stipulate that one of them is not the carrier is the most opprobrious of non-responsibility clauses. 2) The reasons for joint responsibility Article 3(8) of the Hague/Visby Rules forbids contracting out of any of the responsibilities listed in articles 2, 3 and 4. As the charterer and the shipowner share these responsibilities, any attempt to disclaim them by virtue of a demise clause or an identity of carrier clause in the bill of lading is and should be invalid. Similarly, art. 3(8) should overcome any notation in the signature box of a bill of lading identifying only the charterer or only the shipowner as the carrier, as well as any clause on the back of the bill limiting the meaning of carrier to the party on whose behalf the bill is signed. Carriage of goods by sea can be characterized as a joint venture between the owners and the charterers, because they share the responsibilities of a carrier under the Hague/Visby Rules, which cannot be contracted out of in virtue of art. 3(8)5. As a result of the shared responsibilities, the carrier and the charterer should be held jointly and severally responsible as carriers. This concept has been judicially accepted.6 In Canastrand, Reed J. endorsed the description of carriage of goods as a joint venture between the charterer and the owner and proceeded to hold the charterer and the owner jointly and severally liable.7 Apart from violating Article 3(8) of the Hague/Visby Rules, the demise clause should be invalid on the basis that any agreement with regards to apportionment of liability between the charterer and the shipowner should not be binding on third parties.8 The burden of ascertaining
International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading signed at Brussels, August 25, 1924 and entered into force June 2, 1931 (the Hague Rules). The Hague Rules were amended by the Protocol to Amend the 1924 Convention, signed at Brussels, February 23, 1968, which entered into force June 23, 1977, and again by the Protocol in respect of Special Drawing Rights, signed at Brussels, December 21, 1979, which entered into force February 14, 1984. The Hague Rules and the subsequent amendments are known as the Hague/Visby Rules. 5 See W. Tetley, Marine Cargo Claims, 4th ed., Chapter 10: Whom to Sue?. Available online at http://tetley.law.mcgill.ca/maritime/ch10.pdf. 6 Canastrand Industries Ltd. v. The Lara S, [1993] 2 F.C. 553, (1993) 60 F.T.R. 1 (Fed. Ct. Can. Tr. Div.), affirmed at (1994) 176 N.R. 31 (Fed. Ct. App.). [hereinafter Canastrand]. 7 Ibid., F.C. at p. 587, F.T.R. at p. 24. This view, however, has attracted some criticism. Justice Nadon in Union Carbide Corp. v. Fednav Ltd., (1997) 131 F.T.R. 241, 1998 AMC 429 (Fed. Ct. of Can.) 1997), rejected the view that charterers and shipowners are involved in certain circumstances in a joint venture, and upheld the validity of the demise clause. The Federal Court of Appeal approved Nadon J.s judgment in Jian Sheng v. Great Tempo S.A., [1998] 3 F.C. 418 at p. 430, 1998 AMC 1864 at p. 1869. For commentary see D. Marler, The Treatment, by the Federal Court of Canada, of Demise and Equivalent Identity of Carrier Clauses in Liner Bills of Lading, (2002) 26 Tul. Mar. L.J. 597, who is highly critical of Federal Court of Canada in the above two decisions for upholding the validity of the demise clause. 8 See W. Tetley, Chapter 10: Whom to Sue, Marine Cargo Claims, 4th ed. Available online at: http://tetley.law.mcgill.ca/maritime/ch10.pdf
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3 the various relationships between the possibly numerous charterers and the shipowners should fall on the shipowners and the charterers, not on the shipper, the consignee or the endorsee, who are innocent third parties. 9 Holding the shipowner and the charterer jointly and severally liable would permit the shipper, the consignee or the endorsee to sue the charterer alone, as it is the charterer whose name appears on the bill of lading and who assumes responsibilities under, and profits from, the contract of carriage.10 Should the charterer choose, he may then seek indemnity and contribution from the shipowner, pursuant to the terms of the charterparty. The shipowner and charterer have a contract (the charterparty), the terms of which are unknown to the shipper/consignee/endorsee, etc. The shipowner and charterer should therefore settle their differences elsewhere. This makes good business sense. 3) The decisions of other nations In this respect, it is noteworthy as well that the courts of many countries, which are also party to the Hague or Hague/Visby Rules, have deemed the demise clause a violation of Rule 3(8) and therefore void as against third parties, who may therefore hold the charterer and shipowner jointly responsible.11 None of these cases were raised in The Starsin in any of the courts.
Ibid., 3 Ed., 1988 at pp. 249-250. Ibid. 11 In the United States, several courts have found the demise clause to be invalid with respect to sect. 3(8) of U.S. COGSA. In Epstein v. United States, 86 F. Supp. 740, 1949 AMC 1598 (S.D. N.Y. 1949), the charterer's claim that the contract was between the shipper and owner was ruled "disingenuous" by the Southern District of New York. The District Court, F. Supp. at p. 743, AMC at p. 1601, decided that the demise clause was "obviously a fraud on the shipper and conveys a false warranty of authority to contract" and constitutes a "clear violation" of sect. 3(8) of U.S. COGSA. The Fifth Circuit, in Thyssen Steel Co. v. M/V Kavo Yerakas, 50 F. 3d 1349 at p. 1353, 1995 AMC 2317 at p. 2322 (5 Cir. 1995), held that the demise clause was invalid under sect. 3(8) of U.S. COGSA as an attempt to avoid or lessen the carrier's liability. Again in Nippon Fire & Marine Ins. Co. v. M/V Spring Wave, 92 F. Supp. 2d 574 at p. 576, 2000 AMC 1717 at p. 1719 (E.D. La. 2000), the Eastern District of Louisiana refused to apply a bill of lading clause calling for Japanese law and jurisdiction, partly because of the real risk that a Japanese court might enforce certain clauses in the bill that violated U.S. public policy, including, among others, a demise clause, which provision was characterized as unlawful for a vessel owner under [U.S. COGSA] Section 1303(8). See the similar decision of the Southern District of New York in Central NationalGottesman, Inc. v. M/V Gertrude Oldendorff 204 F.Supp.2d 675, 2002 AMC 1477 (S.D. N.Y. 2002), which decision also cites several others holding that there may be more than one carrier under a bill of lading . Canadian Courts have also held the demise clause to be invalid. In Canadian Klockner Ltd. v. D/S A/S Flint (The Mica), [1973] F.C. 988 at p. 1000, [1973] 2 Lloyds Rep. 478 at p. 484, the Federal Court of Canada held that the identity of carrier clause was null and void as an exculpatory clause purporting to relieve the carrier from liability in violation of art. 3(8) of the Hague Rules. In Canastrand, supra note 6, the identity of the carrier clause was held to be invalid. Reed J. then held, at page 587, that the charterer and the shipowner were jointly and severally liable for damage arising out of inadequate stowage. See also W. Tetley, The Demise of the Demise Clause? (1999) 44 McGill LJ 807; also available online at http://tetley.law.mcgill.ca/maritime/demiseclause.htm. French courts too generally refuse to enforce demise and identity of carrier clauses against cargo claimaints. See, for example, Cour d'Appel de Paris, September 29, 1988, DMF 1990, 381 (The Tini-P) (also summarized at DMF 1991, 92, n 54), confirmed by the Cour de Cassation on June 12, 1990 in an unpublished decision. See also Cour d'Appel de Paris, March 25, 1993, DMF 1994, 504 (The Arno), with commentary by Yves Tassel (also summarized at DMF 1995, 181, n 50); Cour dAppel de Versailles, May 31, 2001, BTL 2001, 728, commentary by P. Bonassies, DMF Hors srie no. 6, 2002, no. 74 at p. 63. For Belgium, see also Cour d'Appel de Bruxelles, March 1, 1963, JPA 1963, 329 (The Ferdia). In the Netherlands, the identity of carrier clause has been held to be invalid on the ground that it does not allow the court having proper jurisdiction to be determined and thus violates art. 17 of the 1968 Brussels Convention on Jurisdiction and the Enforcement of
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4) Lord Justice Rix Lord Justice Rix, who dissented in appeal and was upheld in the Lords, had in fact raised the possibility of liability of both the owner and charterer to third parties. Under the heading Another possibility: Owners liable as well as charterers? he wrote: Nevertheless, I raised in argument the possibility that there did not have to be a black and white choice between owners` bills and charterers` bills and that the true analysis in such a case may well be that the owners as well as the charterers are liable on the bills.12 Rix L.J. discussed the third alternative for two pages and then unfortunately concluded: In the circumstances, where the point was never discussed below, is not a part of the formal appeal, has arisen merely from an enquiry from the bench, and has had no real opportunity for debate, I would for myself be reluctant to make or take a decision based upon it.13 Rix L.J. relied for the most part on the agency theory, but there are many other reasons for joint liability of the charterer and the owner, in particular the public policy/order nature of the Hague/Visby Rules as seen in Rule 3 (8). The House of Lords, however, dismissed summarily the suggestion of Rix, L.J. that both the time charterer and the shipowner may have been carriers in this case.14 5) Hague Rules are an international convention The Hague/Visby Rules, too, are an international treaty, which should be interpreted in an international sense, and not solely in the light of English common law rules on the authority of the master or agents to sign bill of lading contracts. As Lord Macmillan famously said in Stag Line, Ltd. vs. Foscolo, Mango & Co. in 1931: It is important to remember that the Act of 1924 [i.e. The Hague Rules, 1924], was the outcome of an International Conference and that the rules in the Schedule have an international currency. As these rules must come under the consideration of foreign Courts, it is desirable in the interests of uniformity that their interpretation should not be rigidly controlled by domestic precedents of antecedent date, but rather that the language of the rules should be construed on broad principles of general acceptation.15
Judgments in Civil and Commercial Matters (Hof's Gravenhage, April 22, 1997, [1998] ETL 263). Italian courts have also found these clauses invalid. See aslav Pejovi, The Identity of Carrier Problem Under Time Charters: Diversity Despite Unification of Law (2000) 31 JMLC 379 at p. 391 and Italian decisions cited there. 12 Supra, note 3 at p. 451. 13 Ibid, at p. 452. 14 Supra, note 1, [2003] 1 Lloyds Rep. at p. 577 (per Lord Bingham): In the present case, the suggestion that CPS contracted jointly on its own behalf and on behalf of the shipowner loses credibility when one notes that this possibility, although not objectionable in legal principle, first occurred to a member of the Court of Appeal during argument: [2001] 1 Lloyds Rep. 437 at p. 452, par. 75.. See also at p. 590 (per Lord Hoffmann): I do not think that any reasonable merchant or banker who might be assumed to be the notional reader of this bill of lading would imagine that there was more than one carrier or that the carrier was anyone other than CPS. See, however, the discursive speech of Lord Hobhouse, who, after discussing the possible recourse of the cargo claimants against the shipowner in bailment, devotes several pages of his judgment to a consideration of the shipowner as carrier (ibid. at pp. 608-611). 15 Stag Line, Ltd. v. Foscolo, Mango & Co., [1932] A.C. 328, at p. 350; (1931) 41 Ll. L. Rep. 165 at p. 74 (H.L.). Lord Macmillans statement has been relied on heavily in many important British decisions,

In other words, the Hague and Hague/Visby Rules are an international convention and should be construed as such.16 Thus English common law rules, focusing on whose behalf the master and agents signed the bills of lading, whether for owners or charterers, cannot overcome the internationally accepted meaning of the Rules. 6) The Vienna Convention In recent years, new considerations have also entered into the equation, including the Vienna Convention on the Law of Treaties of 1969,17 to which the UK and over 90 other nations are party, and which stipulates that a convention shall be interpreted in good faith in the light of its object and purpose18. 7) The U.C.P 500 Bills of lading, too, in the hands of third parties, are documents of international, commercial integrity, particularly where used in documentary credit transactions. The Uniform Customs and Practice for Documentary Credits, 199319 of the International Chamber of Commerce (ICC), better known as UCP 500, require that the carrier be clearly identified by

including the by the Privy Council in Maxine Footwear Co. v. Canadian Government Merchant Marine Ltd. [1959] A.C. 589 at 603, [1959] 2 Lloyds Rep. 105 at p. 113, when discarding the old doctrine of stages of seaworthiness. As well Lord Macmillans statement was relied on by the House of Lords in Riverstone Meat Co. Pty. Ltd v. Lancashire Shipping Co. (The Munster Castle) [1961] A.C. 807 at 874, [1961] 1 Lloyds Rep. 57 at p. 88, 1961 AMC 1357 at p. 1400, in holding that due diligence to provide a seaworthy vessel required more than appointing qualified experts to do the job. Lord Macmillans famous holding has also influenced American judges. It was cited by the California Court of Appeals in Francosteel Corp. v. N.V. Nederlandsch Amerikaansche Stoomvaart-Maatschappij, 249 Cal. App.2d 880 at p. 889, 1967 AMC 2440 at p. 2448 (Cal. App. 1967), cert. denied, 389 U.S. 931 (1967), in deciding that the one-year time bar of U.S. COGSA 1936 applies even in cases of deviation such as unjustified deck carriage. The Ninth Circuit invoked the same citation to support its decision in Sunkist Growers, Inc. v. Adelaide Shipping Lines, Ltd., 603 F.2d 1327 at p. 1338, 1979 AMC 2787 at pp. 2802-2803 (9 Cir. 1979), cert. denied, 444 U.S. 1012, 1980 AMC 2102 (1980), where the fire exception of COGSA (46 U.S.C. Appx. 1304(2)(b)) was held to be effective as a defence of the carrier only if the carrier first proved his exercise of due diligence to make the ship seaworthy before and at the beginning of the voyage. 16 See W. Tetley, Marine Cargo Claims, 4th ed., Chap. 3: Interpretation and Construction of the Rules, available online at http://tetley.law.mcgill.ca/maritime/ch3.pdf. Since the Hague and Hague/Visby Rules are international agreements that were reached to encourage uniformity in practices relating to the carriage of goods on the oceans and waterways of the world, they should be construed so as to be internationally acceptable. The Supreme Court of Canada adopted this point of view in Dominion Glass Co. Ltd. v. Anglo Indian, [1944] S.C.R. 409 at p. 420, 1944 AMC 1407 at p. 1418. Kerwin J., speaking for the Court, quoted Lord Macmillan and stated that I adopt, if I may, these statements as my own as expressing the proper method to be followed in construing the [Hague] Rules. Lord Macmillans words have also been cited with approval by the High Court of Australia in Shipping Corp. of India Ltd. v. Gamlen Chemical Co. (Australasia) Pty. Ltd. (1980) 147 C.L.R. 142 at pp. 159-160, (1980) 32 A.L.R. 605 at p. 618 (High C. of Aust.), cited with approval by Callinan, J. in Great China Metal Industries Co. Ltd. v. Malaysian International Shipping Corp. Berhad (The Bunga Seroja) (1998) 158 A.L.R. 1 at p. 52, 1999 AMC 427 at p. 496, [1999] 1 Lloyds Rep. 512 at p. 543 (High C. of Aust.), and by the Hong Kong High Court in Ryoden Machinery Co. Ltd. v. Owners of the Ship Anders Maersk [1986] 1 Lloyds Rep. 483 at p. 485, 1986 AMC 1269 at p. 1272 (Hong Kong High C. (Adm.)). 17 Vienna Convention on the Law of the Treaties, adopted at Vienna, May 23, 1969, and in force January 27, 1980, 1155 U.N.T.S. 331. 18 Ibid, article 31(1). 19 Uniform Customs and Practice for Documentary Credits, 1993 Revision, International Chamber of Commerce Publication No. 500. Came into effect January 1, 1994. See http://www.iccwbo.org/.

6 name on the face of the bill of lading20. As has been said, this requirement is technically inconsistent with a demise clause or an identity of carrier clause, which identify, but do not name, the shipowner as carrier, and which are printed on the back, and not on the face, of standard-form bills of lading. But even if demise and identity of carrier clauses actually named the shipowner, and even if they appeared on the face of bills of lading, they would still be non-compliant with art. 23(a)(i) of UCP 500, because in portraying the shipowner alone as the carrier, when both the owner and charterer share the responsibilities of carrier under the Hague and Hague/Visby Rules,21 these clauses fail to tell the whole truth about who the carrier really is. If anything, this incomplete, and therefore misleading, identification of the carrier raises another argument for the invalidity of demise and identity of carrier clauses in bills of lading. In The Starsin, where the charterer was named as carrier on the face of the bills of lading, article 23(a)(i) of UCP 500 was invoked to support the conclusion that the charterer was the carrier, despite the contradictory wording of the demise and identity of carrier clauses.22 Accordingly, the technical requirements of the article appeared prima facie to have been met. In reality, however, the bills of lading did not comply with UCP 500, because in naming only the charterer as carrier, and not mentioning the shipowner which also participated in performing the obligations of carrier under the contracts of carriage and the Hague Rules, the bills did not reflect the true identity of the carrier, as article 23(a)(i) undoubtedly requires. Putting any name as carrier in the signature box of a bill of lading is not compliance with UCP 500. 8) The UNIDROIT Principles of International Commercial Contracts 1994 Demise clauses are now also arguably incompatible with the UNIDROIT Principles of International Commercial Contracts 1994,23 art. 1.7 (1) of which requires each party to a contract to act in accordance with good faith and fair dealing in international trade. Is a demise clause or an identity of carrier clause in good faith when the parties to a charterparty may decide between themselves that only one of them (or even another person, such as a shipowner registered in Panama or Vanuatu) is the carrier under bills of lading? Is it fair dealing in international trade for the owner and charterer to then issue a bill of lading to that effect to third parties? 9) Failure to plead joint liability It is unfortunate that the liability of both the shipowner and charterer under Rule 3(8) of the Hague and Hague/Visby Rules was not pleaded before the House of Lords in The Starsin. It is important that foreign jurisprudence was not raised nor was the fact that the international
Ibid, Article 23(a)(i), which provides in pertinent part: If a Credit calls for a bill of lading covering a portto-port shipment, banks will, unless otherwise stipulated in the Credit, accept a document, however named, which: (i) appears on its face to indicate the name of the carrier. 21 See Tetley, Chapter 10: Whom to sue, Marine Cargo Claims, 4th ed. Available online at: http://tetley.law.mcgill.ca/maritime/ch10.pdf. 22 Supra, note 1, [2003] 1 Lloyds Rep. at p. 578; 2 All ER at 795; 2003 AMC at 921 (per Lord Bingham) and [2003] 1 Lloyds Rep. at pp. 588-589; 2 All ER at 811-812; 2003 AMC at 943-945 (per Lord Hoffmann). 23 http://www.unidroit.org/english/presentation/main.htm. See also J.M Perillo., UNIDROIT Principles of International Commercial Contracts (1994): The black letter text and a review (1994) 63 Fordham Law Review 281; on line at http://www.unidroit.org/english/principles/pr-main.htm. See also W. Tetley, International Maritime and Admiralty Law, Les ditions Yvon Blais, Montreal, 2002 at p. 268, footnote 19.
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7 nature of the Rules made them subject to international, rather than national, rules of interpretation. The question is still open in consequence. Let us hope that the third alternative will be raised in the U.K., in the near future. Uniformity of international law requires uniformity of interpretation of international conventions and documents, including the Hague and Hague/Visby Rules and bills of lading. III. The Himalaya Clause and the Straining of the Hague Rules 1) Collateral contract The House of Lords then ruled on whether a shipowner, once deemed not the carrier, could benefit by the Himalaya clause. They first held that the shipowners are clearly independent contractors24 under the clause and relied on standard Himalaya clause cases25 in finding a collateral contract. But is not such a collateral contract, a contract for carriage of goods by sea, within the meaning of the Hague Rules? In answer, the Lords deemed the collateral contract not to be a contract for the carriage of goods by sea within the meaning of the Hague Rules.26 The shipowner was then found to be a party to the contract of carriage, as evidenced by the bill of lading, but only for the purpose of benefiting from the exemption in the Himalaya clause, which the House of Lords then proceeded to invalidate through the application of art. 3(8) of the Hague Rules! (This incidentally was the same art. 3(8) that the Law Lords did not apply or even consider in respect of the demise clause).27 Essentially, the House of Lords held that only a portion of the Hague Rules (art. 3(8)) applied to the collateral contract, and therefore the shipowner was subject to art. 3(8) but was found not to be subject to the obligations or duties of art. 3(1) and 3(2) of the Hague Rules.28 In a case involving stevedores, who often perform services, or assume obligations, not covered under the bill of lading contract, the result in The Starsin would seem appropriate. Individuals such as stevedores, who perform services associated with a contract of carriage, for the benefit of shippers, should have the benefit of the exemptions and limitations.29 It is arguable that stevedores should not, and even could not, be burdened with all the obligations of the carrier under the Hague Rules. On the other hand, the owner of a ship which carries the goods is a very different matter. The shipowner and the charterer share the responsibilities of loading, carrying, caring for and discharging the cargo under the Hague
Supra, note 1, [2003] 1 Lloyds Rep. at p. 584; 2 All ER at 805; 2003 AMC at 935. Supra, note 1, [2003] 1 Lloyds Rep. at p. 616; 2 All ER at 852; 2003 AMC at 1000. The Eurymedon, [1975] A.C. 154, [1974] 1 Lloyds Rep. 534 (P.C.); The New York Star, [1981] 1 W.L.R. 138, [1980] 2 Lloyds Rep. 317 (P.C.); The Mahkutai, [1996] A.C. 650, [1996] 2 Lloyds Rep. 1 (P.C.). 26 Supra, note 1, [2003] 1 Lloyds Rep. at pp. 617 and 593-594; 2 All ER at pp. 853 and 819; 2003 AMC at pp. 1002 and 953-954. Lord Millett, [2003] 1 Lloyds Rep. at p. 617; 2 All ER at p. 853; 2003 AMC at p. 1002 characterized the collateral contract as follows: It is rather a contract of exemption which is ancillary or collateral to other contractual arrangements (the time charter and the bill of lading) which were necessary to achieve the carriage of the goods on the chosen vessel. 27 Supra, note 1, [2003] 1 Lloyds Rep. at pp. 582, 593-594, and 618; 2 All ER at pp. 801, 819, and 854855; 2003 AMC at pp. 929, 953-954, and 1003-1004. 28 Supra, note 1, [2003] 1 Lloyds Rep at p. 582; 2 All ER at p. 801; 2003 AMC at pp. 929. 29 The Eurymedon (New Zealand Shipping Co. Ltd. v. A.M. Satterthwaite & Co. Ltd.), [1975] A.C. 154 at p. 168, [1974] 1 Lloyds Rep. 534 at p. 539.
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8 Rules.30 Carriage of goods by sea is a joint venture between the charterer and owner,31 and in light of such characterization, it is difficult to justify such a disproportionate application of the Hague Rules with respect to the two parties. 2) Contract of exemption The need for adopting this notion of a contract of exemption, as described by Lord Millett,32 and the piecemeal application of the Hague Rules, really only arises because the Lords were unwilling to apply the third alternative discussed above, i.e. that both the shipowner and the charterer were the carrier. Had the shipowner and the charterer both been held to be carriers, the shipowner would have had the protection of the Hague/Visby Rules (essentially eliminating the need for consideration of the Himalaya clause). The shipping community and the courts in general have accepted Himalaya clauses and construe them in order to avoid invalidating them.33 Allowing the stevedores to benefit from package limitations, and thus avoid liability through non-responsibility clauses, has become common practice. Placing a shipowner in the same position as a stevedore is another matter and results in more problems, because the Lords, after declaring that the shipowner was not a carrier, were reluctant to allow the shipowner to escape liability under the non-responsibility provision of the Himalaya Clause. And so the Lords in effect declared their non-carrier shipowner was a little bit a carrier and the non-responsibility clause was invalid under art. 3(8) of the Hague Rules (the same art. 3(8) they did not apply to invalidate the demise and identity of carrier clauses.) Had the courts chosen to expand the definition of a carrier, this would have eliminated the need for the legal gymnastics employed by the House of Lords in The Starsin. 3) Lord Steyn in dissent Lord Steyn, in dissent on this point, seems to have opposed the majority by arguing reductio ad absurdum. Lord Steyn held that the Himalaya clause should be valid, and that the Hague Rules have no application to such clauses. Lord Steyn noted that this interpretation of the Himalaya clause is loyal to the rationale of the advance in the rationality of English law achieved in The Eurymedon and The New York Star. It results in a readily predictable scheme, viz all claims in contract and tort have to be channelled to the charterers. That gives effect to what the parties intended to achieve. It has the merit of being a just decision achieved without in any way straining the Hague Rules. I would hold that the exemption contained in part (1) of clause 5 protects the owners against any liability in tort.34 4) Was there consent and agreement to such an exemption clause? But did the parties actually agree to the clause hidden in the multitude of clauses in the bill of lading as Lord Steyn suggests? Did the parties intend to channel all claims in contract and tort to the charterers? The bill of lading is signed by only one party and is issued long after the ship sails. And how is the consignee and the endorsee for value bound by such an arrangement? Lord Reid`s agency theory, as set out in Midland Silicones35 requires that four
30 31

W. Tetley, Marine Cargo Claims, 3 Ed., 1988, at pp. 234-235. See footnotes 6 and 7. 32 See footnote 26. 33 ITO International Terminal Operators Ltd. v. Miida Electronics Inc. (The Buenos Aires Maru) [1986] 1 S.C.R. 752 at p. 789, (1986) 28 D.L.R. (4th) 641 at p. 677: "Himalaya clauses have become accepted as a part of the commercial law of many of the leading trading nations, including Great Britain, the United States, Australia, New Zealand, and now in Canada. It is thus desirable that the courts avoid constructions of contractual documents which would tend to defeat them. 34 Supra, note 1, [2003] 1 Lloyds Rep. at p. 586; 2 All ER at p. 808; 2003 AMC at p. 938-939. 35 [1962] A.C. 446, [1961] 2 Lloyds Rep. 365 (H.L.).

9 conditions be proven for the Himalaya clause to be valid36 and a fifth consideration, as developed in The Eurymedon.37 None of these conditions seemed to have been proven in The Starsin. The Law Lords also referred to the Contracts (Rights of Third Parties) Act, 199938 and noted that it was not applicable in this case, because the events took place before the Act came into force.39 It was suggested by the Lords that the result would be the same under the Act,40 but the Act does not rule out Lord Reid`s agency theory quite the contrary.41 5) And what law applies to this shipment from Malaysia to Antwerp and Avonmouth? a) The Bills of Lading Seventeen bills of lading were issued covering shipments on the vessel STARSIN from three different loading ports in Malaysia (Kuching, Port Klang and Balau) to Antwerp and Avonmouth. The trial judge divided the bills of lading into three groups to represent the three separate actions:42 1996 Folio 237 related to plywood shipped from Kuching to Antwerp under six bills of lading, the notify party being in each case Makros Hout BV ("the Makros Hout bills") and to plywood and timber panels shipped from Port Klang to Avonmouth under five bills of lading, the notify party being in each case Fetim BV. 1997 Folio 93 related to yellow Balau timber shipped from Belawan to Antwerp under four bills of lading, the notify party being in each case Homburg Houtimport BV ("the Homburg Hout bills"). 1997 Folio 92 related to plywood shipped from Port Klang to Avonmouth under two bills of lading, the notify party being in both cases Hunter Timber Group Ltd ("the Hunter bills"). The bills of lading were all on the Continental Pacific Shipping form. The vessel was at all material times on time charter to Continental Pacific Shipping Ltd. The signature boxes on the face of the bills are completed in three different ways. The Makros Hout bills have the name of the signing company -- United Pansar Sdn Bhd -- and the two signatures prefaced by the
Ibid. A.C. at p. 488, Lloyds Rep. at p. 382: I can see a possibility of success of the agency argument if (first) the bill of lading makes it clear that the stevedore is intended to be protected by the provisions in it which limit liability, (secondly) the bill of lading makes it clear that the carrier in addition to contracting for these provisions on his own behalf, is also contracting as agent for the stevedore that these provisions should apply to the stevedore, (thirdly) the carrier has authority from the stevedore to do that, or perhaps later ratification by the stevedore would suffice, and (fourthly) that any difficulties about consideration moving from the stevedore were overcome. And then to affect the consignee it would be necessary to show that the provisions of the Bills of Lading Act, 1855, apply. 37 The Privy Council, in The Eurymedon, [1975] A.C. 154 at p. 168, [1974] 1 Lloyds Rep. 534 at p. 539 (P.C. per Lord Wilberforce), held that the consideration passing from the stevedore was the discharging of the goods by the stevedore for the benefit of the shipper: The performance of these services for the benefit of the shipper was the consideration for the agreement by the shipper that the appellant (stevedore) should have the benefit of the exemptions and limitations contained in the bill of lading. 38 U.K. 1999, c. 31. 39 The Contracts (Rights of Third Parties) Act 1999, by sect. 10(2), came into force the day it was adopted (November 11, 1999), but applied only in respect of contracts concluded six months later (i.e. on or after May 11, 2000). The bills of lading in The Starsin were dated between November 10 and 28, 1995. 40 Supra, note 1, [2003] 1 Lloyds Rep. at p. 585; 2 All ER at 806; 2003 AMC at p. 936 (per Lord Steyn), and [2003] 1Lloyds Rep. at p. 611; 2 All ER at p. 844; 2003 AMC at p. 988-989 (per Lord Hobhouse). 41 By sect. 7(1) of the Contracts (Rights of Third Parties Act) 1999, rights or remedies of third parties existing or available apart from the Act are preserved. See A. Burrows, The Contracts (Rights of Third Parties Act) 1999 and its implications for commercial contracts [2000] LMCLQ 540 at pp. 549-550. 42 Supra, note 2 at p. 88.
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10 words "As agents for Continental Pacific Shipping" ("The Carrier"). The Homburg Hout bills have the stamp of the signing company, PT Katana Line, and its signature followed by the words "As agents for the carrier Continental Pacific Shipping". The Hunter and Fetim bills have in the signature box the stamp of Multiport Sdn Bhd, then the signature, then "As Agents for Continental Pacific Shipping as Carrier".43 The judgments do not specifically mention where the bills of lading were signed, although they were issued clean at the port of departure. b) The Applicable Law The trial judge did not discuss the applicable law; rather he simply applied English law, as did the Court of Appeal. The bills of lading specified that BASIS OF CONTRACT This Bill of Lading shall have effect subject to the provisions of Articles I to VIII of the International Convention for the Unification of certain Rules relating to Bills of Lading at Brussels on August 25, 1924 (hereinafter called the Hague Rules) unless otherwise provided for in this Bill of Lading . . . 44 Nevertheless, the bills of lading were ambiguous as to the applicable law, in that clause 34 on law and jurisdiction, provided: The contract evidenced hereby or contained herein shall be governed by English law. Any claim or other dispute thereunder shall be solely determined by the English Courts unless the Carrier otherwise agrees in writing.45 The contracts (bills of lading) thus specifically incorporated the Hague Rules, albeit only in part, while also containing a confusing reference to English law. As well, Malaysias Carriage of Goods by Sea Ordinance 1950 (Revised 1994)46 incorporates the Hague Rules in their entirety in respect of shipments outbound from Malaysia. The Ordinance was revised in 1994 and sect. 2 of the Act states: Subject to this Act, the Rules set out in the First Schedule ('hereinafter referred to as the Rules') shall have effect in relation to and in connection with the carriage of goods by sea in ships carrying goods from any port in Malaysia to any other port whether in or outside Malaysia. Given that the Hague Rules apply outwards compulsorily, as is clearly re-affirmed in sect. 2, then the 1924 Hague Rules, in their entirety, should be the applicable law, along with Malaysian law. It has been acknowledged by Malaysian authors, however, that commercial disputes especially in international trade can often be seized by a court in a foreign country even if the shipment is from Malaysia. It is unlikely that the courts in a foreign country would apply the laws of Malaysia unless the law of Malaysia is the governing law of the contract between the parties.47 c) Malaysian law The English courts, however, simply applied English law without any mention of Malaysian law or any consideration of its mandatory applicability to the contracts of carriage in question. This is unfortunate, because English law is not necessarily Malaysian law or
Supra, note 2 at p. 89. Supra, note 1, [2003] 1 Lloyds Rep. at p. 609; 2 All ER at p. 842; 2003 AMC at p. 986. 45 Supra, note 1, [2003] 1 Lloyds Rep. at p. 596; 2 All ER at p. 822; 2003 AMC at p. 958. 46 Malaysian Act 527 as amended. 47 R. Mohamed Fadzil, International Marine Cargo Liability - A Malaysian Carrier's Perspective Malaysian Law Journal. Found online at: http://www.mlj.com.my/free/articles/rozlinda.htm.
44 43

11 international law, while English decisions and scholarship are becoming, in some respects, quite introspective. IV. Who has the right to claim in tort for damages to the cargo A further issue that the House of Lords dealt with in The Starsin was whether the plaintiffs now had the right to claim in tort48 against the shipowner. The House of Lords relied on The Aliakmon49 and held that only a single claimant (Makros Hout B.V.), which had had title to the goods at the time of the damage, had standing to sue in tort. Lord Hoffmann reasoned that a claimant without title, has suffered economic damage rather than physical damage to his property: he has paid for goods which were damaged and therefore worth less at the time that he acquired title. Such loss cannot be recovered in an action for negligence.50 This approach is in accordance with classic English common law theory, that only the owner of the goods may sue in tort.51 There is, however, an alternative for claimants who were not owners of the goods at the time the damage happened, and that is bailment. V. An Alternative to a Tort Claim: Bailment Although the House of Lords relied on The Aliakmon in dealing with who may claim in the extracontractual sphere, Lord Brandons alternative regarding bailment was not mentioned: If the shipowners as bailors had ever attorned (transferred his responsibilities) to the buyers, so that they became the bailors of the goods in the place of the sellers, the bailment would then have taken effect as between the shipowners and the sellers.52 This would provide the legal ground for a duty of care based on the terms of the bill of lading and permit the buyer to sue. Lord Hobhouse, however, did discuss bailment,53 despite the fact that the claimants barrister did not seek before your Lordships to establish a bailment on terms, or any bailment; he contented himself with the bald assertion that any such analysis was simply wrong.54 This seems to have been an error on the part of the plaintiffs barrister, because Lord Hobhouse, in
Any contractual claim against the shipowners was barred as they were not considered party to the contract of carriage. 49 Leigh & Sillivan v. Aliakmon Shipping Co Ltd. (The Aliakmon) [1986] A.C. 785, [1985] 2 Lloyds Rep. 1 (H.L.) [hereinafter Aliakmon]. Lord Brandon of Oakbrook (A.C. at p. 809, Lloyds Rep. at p. 4) stated: "My Lords, there is a long line of authority for a principle of law that, in order to enable a person to claim in negligence for loss caused to him by reason of loss of or damage to property, he must have had either the legal ownership of or a possessory title to the property concerned at the time when the loss or damage occurred, and it is not enough for him to have only had contractual rights in relation to such property which have been adversely affected by the loss of or damage to it". 50 Supra, note 1, [2003] 1 Lloyds Rep at p. 590; 2 All ER at p. 813-814; 2003 AMC at p. 946. 51 See W. Tetley, Marine Cargo Claims, 4th ed., Chapter 8: Who May Claim or Sue?. Available online at http://tetley.law.mcgill.ca/maritime/ch8.pdf. This principle was enunciated in Margarine Union G.m.b.H. v. Cambay Prince S.S. Co. (The Wear Breeze) [1967] 2 Lloyds Rep. 315, [1969] 1 Q.B. 219. 52 Aliakmon, supra, note 49, A.C. at p. 818, Lloyds Rep. at p. 10. In The Hamburg Star [1994] 1 Lloyds Rep. 399, the Court relied upon The Aliakmon to find that the plaintiff could claim against the shipowner as bailee for the shipowners negligence. See W. Tetley, Marine Cargo Claims, 4 Ed. Chapter 8, Preliminary edition online at: http://tetley.law.mcgill.ca/maritime/ch8.pdf. 53 Supra, note 1, [2003] 1 Lloyds Rep. at pp. 598-603; 2 All ER at pp. 825-832; 2003 AMC 962-972. 54 Supra, note 1, [2003] 1 Lloyds Rep. at p. 598; 2 All ER at p. 825; 2003 AMC at p. 962.
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12 obiter, essentially declares that the cargo interests (with one exception) would have been able to hold the shipowners liable as sub-bailees.55 A suit in bailment would have been an acceptable alternative for the cargo claimants in The Starsin, given the unavailability of suit in contract and the restrictive rules in tort governing who may sue. Upon delivery of the goods, by which time the cargo claimants other than the shipper had an ownership interest in them, the claimants would have had a suit in bailment for the failure to deliver the goods undamaged.56 Had the House of Lords found both the shipowner and the charterer to be the carrier, the cargo interests would have had standing to sue, as lawful holders of the bills of lading, by virtue of the Carriage of Goods by Sea Act 1992.57 A suit in bailment would have had the same outcome with regards to who may sue, thereby overcoming the restrictive interpretation of the term carrier by the House of Lords. VI. Conclusion At the end of the day, it would seem that the majority of cargo interests in The Starsin were defeated on three fronts: firstly, by the fact that the liability of both the shipowner and the charterer as the carrier was not pleaded in all three courts; secondly, that only English common law rules of interpretation were used; and thirdly, that bailment was not argued before the House of Lords. The outcome as well might have been different if Malaysian law had been alleged and proven. The House of Lords in The Starsin missed an important opportunity to explore and affirm that the charterer and the shipowner are both the carrier. Had the Lords done so, they would have rendered moot, the three corollary issues relating to (i) the Himalaya clause, (ii) suit in tort and (iii) suit in bailment. Let us also hope that in the next demise clause/identity of carrier clause case, the House of Lords will consider whether the shipowner and the charterer are together the carrier, will recognize the international character of the Hague/Visby Rules and decisions of the courts of other nations on the question, and will apply international rules, as well as English common law rules, of interpretation to bills of lading.

Postscriptum

Supra, note 1, [2003] 1 Lloyds Rep. at p. 602; 2 All ER at p. 831; 2003 AMC at p. 971. Lord Hobhouse declared that his judgment established that: (1) in situations such as the present there is a bailment and sub-bailment; (2) no attornment by the sub-bailee to the goods owner is necessary; (3) notwithstanding that there is no contract between them, the sub-bailee owes to the goods owner the duties of a bailee for reward; (4) but the sub-bailee may rely upon the terms upon which he took possession of the goods from the bailee; (5) the fact that there is a 'Himalaya' clause in the contract between the goods owner and the bailee does not oust the sub-bailee's right to rely upon the terms of the sub-bailment. 56 Supra, note 1, [2003] 1 Lloyds Rep. at pp. 602-603; 2 All ER at pp. 831-832; 2003 AMC at p. 972. 57 U.K. 1992, c. 50, sect. 2(1)(a).

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13 The Starsin decision raises two matters that have been troubling me for years: i) the failure of counsel and the courts, in this case and in many others, to consider foreign law, and ii) the emerging trend of interpreting international law in a national manner. 1) Foreign law The first troubling matter arises from the failure of solicitors, counsel and the three U.K. courts involved to consider that foreign law might apply (Malaysian law), or that foreign judgments should be considered in deciding a question under an international convention (the Hague/Visby Rules), or that international rules of statutory interpretation should be applied. Instead there was a general acceptance that English common law was the applicable law to obtain justice,58 a sentiment not limited to the Starsin proceedings.59 The insistence on English law is similar to Lord Dennings famous dictum, which was much derided, but also much followed: 60 If a plaintiff considers that the procedure of our courts, or the substantive law of England, may hold advantages for him superior to that of any other country, he is entitled to bring his action hereThe right to come here is not confined to Englishmen. It extends to any friendly foreigner. He can seek the aid of our courts if he so desires to do so. You may call this forum shopping if you please,

My own investigation reveals that Malaysian law was not pleaded in relation to the tort claim because neither party believed that the law would be any different from English law. The truth is that no one thought about it. There was an attempt to amend and plead the Malaysian Latent Damage Act, 1986. The amendment was disallowed in first instance and in appeal, because there was insufficient time to investigate Malaysian law. 59 The English courts have not always deemed it important to consider jurisprudence from other jurisdictions, even when interpreting an international statute. See The Kapitan Petko Voivoda [2003] 2 Lloyds Rep 1, at 18 (C.A.) per Judge L.J.: By way of footnote, I should add that, notwithstanding that we are considering an international convention [The Hague Rules], I can see no advantage in commenting on decisions reached in different jurisdictions. On the other hand, see the Court of Appeal in J I MacWilliam Co Inc v Mediterranean Shipping Co SA, 'The Rafaela S' [2003] 2 Lloyds Rep. 113 at p. 121 (C.A.), where Rix L.J. opined that since the Hague Rules are an international convention, they should not be construed too narrowly according to domestic English concepts. Rix L.J then went on to consider jurisprudence from Germany, Singapore, Holland and France, before rejecting the English authorities in favour of the foreign position, at p. 143: Whatever, the history of the phrase in English common or statutory law may be, I see no reason why a document which has to be produced to obtain possession of the goods should not be regarded, in an international convention, as a document of title. It is so regarded by the courts of France, Holland and Singapore. 60 The Atlantic Star [1972] 2 Lloyds Rep. 446 at p. 451, [1973] Q.B. 364 at p. 382 (C.A.). The House of Lords, however, reversed the decision, with Lord Reid commenting on Dennings quote My Lords, with all respect, that seems to me to recall the good old days, the passing of which many may regret, when inhabitants of this island felt an innate superiority over those unfortunate enough to belong to other races. It is a function of this House to try, so far as possible, to keep the development of the common law in line with the policy of Parliament and the movement of public opinion. So I think that the time is ripe for a reexamination of the rather insular doctrine to which I have referred. See The Atlantic Star [1974] A.C. 436 at p. 453, [1973] 2 Lloyds Rep. 197 at p. 200 (H.L). Lord Reids criticism of Lord Dennings view was also cited by Lord Diplock in The Abidin Daver [1984] A.C. 398 at p. 407, [1984] 1 Lloyds Rep. 339 at p. 341 (H.L.). Lord Diplock also held (ibid., A.C. at p. 411, Lloyds Rep. at p. 344) that since the decision in The Atlantic Star, judicial chauvinism has been replaced with judicial comity.

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14 but if the forum is England, it is a good place to shop in, both for the quality of the goods and the speed of the service.61 The same (should it be called) nationalism or even chauvinism or parochialism may also be found in American courts on occasion. It is particularly present, of course, in France and most civilian European countries, which go their own way and refer rarely to the outside world, presumably on the grounds that civilian courts do not cite previous decisions, even their own. The Scandinavians are more international in their approach, however. Some English-speaking nations, often do take an international view Canada, South Africa and New Zealand, but this may be because they have fewer cases before them on any given subject each year. Israel, which has the English tradition, is often international in character,62 but, Cyprus and Singapore, for example, seem to have retained their colonial past and are very House of Lords-oriented.63 Was it always thus? There is much evidence that it wasnt. U.S. Supreme court justice Joseph Story, J. copiously cited English decisions, while the celebrated English decision on measure of damages, Hadley v. Baxendale, cites and relies on the French Civil Code64 and also cites the great civilian authority, Domat.65 2) National interpretation of international conventions The second troubling matter that The Starsin raises is the acceptance of the belief rapidly attaining ascendancy that international law need not be international, but only national. That is that the courts of one nation accept that other nations will have their own national interpretation of an international convention. An example of this reasoning can be seen in the Bunga Seroja of the High Court of Australia.66 The House of Lords in The Starsin, for example,
There is evidence that English courts have not yet been totally converted to judicial comity. See Cheshire & Norths Private International Law (P.M. North & J.J. Fawcett, eds.), 13 Ed., Butterworths, London, 1999 at pp. 346-347: it has to be borne in mind that there is a public interest in allowing trial in England of what are, in essence, foreign actions. When foreigners litigate in England this forms a valuable invisible export, and confirms judicial pride in the English legal system. The emphasis in the House of Lords is now very much on chauvinism being replaced by judicial comity. However, the extent to which this new spirit has filtered down to lower courts is questionable. In many cases the courts have concluded that the interests of justice demand that a stay be refused, even though the clearly more appropriate forum is abroad. As has been seen, there are numerous examples of cases where English courts have held that there would be positive injustice in trial abroad or an important advantage to the claimant in trial in England. 62 See The Nadja S. (Griffin Corp. v. Koor Sachar) 44 (3) P.D. 45 (1990) (Supreme Court of Israel) holding, contrary to English law, that a foreign maritime lien for necessaries was a substantive right. The Court therefore recognized foreign necessaries, following the approach of Canada and the United States. For further discussion see W. Tetley, International Conflict of Laws: Civil, Common and Maritime, Les ditions Yvon Blais, Montreal, 1994, at pp. 579-580. 63 For examples see, Hassanein v. The Hellenic Island [1989] 1 C.L.R. 406 (Cyprus Supr. Ct.), and The Andres Bonifacio (1993) 3 S.L.R. 521 (Singapore C.A), both following the English Privy Council decision The Halcyon Isle [1981] A.C. 221, [1980] 2 Lloyds Rep. 325, 1980 AMC 1221. See also National Summary: Singapore, in W. Tetley, Marine Cargo Claims, 3 Ed., 1988, at pp. 1085-1086. 64 Hadley v. Baxendale (1854) 9 Ex. C.R. 341 at pp. 345-346, 156 E.R. 145 at pp. 147-148. 65 Ibid. Ex. C.R. at p. 350, E.R. at p. 149. 66 Bunga Seroja (1998) 158 A.L.R. 1, [1999] 1 Lloyds Rep. 512, 1999 AMC 429. The Court discusses at the difference between Anglo-Australian and American-Canadian construction of the perils of the sea exception of the Hague Rules, after stating though that because the Hague Rules are intended to apply
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15 did not consider that the Hague Rules are an international convention and therefore must be construed as such so strong is the view expressed that English law is international law in any event. May I add that this acceptance of national differences is often seen in the legal writings of England, the U.S., France, Europe, etc. As an example, books on specific maritime subjects are often, at best, two books (one on English law and one on American law) within a single cover, each part done by competent authors on each side of the Atlantic. There is usually little comparative law or criticism, and we are thus subconsciously asked to note, without complaint, that the law and scholarship on these international matters is not international. Another example of the phenomenon comes to mind. About ten years ago, I gave a lecture at a large London law firm and presented a cargo claims problem of a shipment from the U.K. to the U.S. There was a demise clause, a peril of the sea and a deviation to Iceland to pick up remunerative cargo. The first half of the question was to render an opinion as to the responsibility of the shipowner and the charterer, if suit were taken in London. There was lively and edified discussion by those present, including, about twenty recent graduates, five or six lawyers in the claims department and the senior partner in charge. When it came to the second half of the question, What if suit is taken in New York ?, the senior partner merely said Oh, we just send the claim to a law firm in New York. Dear reader, please forgive this anguished postscript and thank you for having read thus far. It is the cry of someone who knows that the majority of persons out there believe in international maritime law. Those persons, however, need stimulation from the courts and those persons should also stimulate the courts. This postscript is therefore by someone who, after more than 50 years in maritime law, wishes to put his plea in writing. William Tetley QC, Professor, McGill University. Email William.Tetley@McGill.ca Web http://tetley.law.mcgill.ca Wt/August 6, 2003 Starsin Five

widely in international trade, it is self-evidently desirable to strive for uniform construction of them. (A.L.R. at p. 10, Lloyds Rep. at p. 518, AMC at p. 438). The Court also acknowledged because the [Hague] rules were created by international agreement, it is not desirable to begin from an assumption that they are to be construed like a contract governed by Australian law or some other common law system. (A.L.R. at p. 7, Lloyds Rep. at p. 516, AMC at p. 433).