International Private Maritime Law Framework

(from AMSA Report 2009)

The international customs and practices of the shipping, cruise and merchant communities are likely to govern the Arctic movement of goods and passengers in addition to international maritime law. Since ships move between different countries, their owners’ contracts can be subjected to a variety of different national jurisdictions and laws. To reduce confusion, the international community has concluded international private law conventions that establish uniform contractual regimes for the carriage of passengers and the carriage of goods under bills of lading (Table 4.6).

Table 4.1 Arctic coastal state maritime jurisdictional zone claims 

Source: AMSA

Shipowners interact with commercial parties, such as cargo owners and cruise passengers, or the suppliers of essential shipping services, like insurers and salvors, through private contracts. The essence of a contract of sea carriage is an agreement for safe transport and delivery by ship in exchange for payment of freight, hire or passage and the allocation of risks and responsibilities of the transit between the parties. These contracts also take into account the relevant international maritime law, with the carrier ensuring that its ship meets international standards for human safety and environmental protection (e.g., SOLAS, the 1972 International Convention for Safe Containers (CSC), MARPOL 73/78 and STCW). International shipping organizations and traders’ associations have also developed standardized clauses for particular trades, cargoes and routes and organized them into blank forms of contracts.

Contracts of carriage for the movement of petroleum, liquefied natural gas (LNG) and minerals moved in bulk in tankers and ore carriers that tramp (sail) around the world from port to port are known as charter parties. Industry bodies like the Baltic and the International Maritime Council (BIMCO) and International Association of Independent Tanker Owners (INTERTANKO) have devised generally accepted standard terms of trade for inclusion in individual charter parties. For example, BIMCO’s voluntary “ice clauses” allow a carrier to deviate from the contracted carriage to prevent a ship from becoming icebound.

Packaged, crated and containerized items, including hazardous goods, are carried under contracts represented by bills of lading and sea waybills that are regulated under competing international rules with similar modes of operation and regulatory function. These rules differ in the standards of conduct expected of the carrier, the scope of application of the rules and the limits of liability for their breach. The 1924 International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading as amended by the Protocols of 1968 and 1979 (Hague-Visby Rules), or some variant of them, are the most widely applied international regulations. The other rules are the 1978 United Nations Convention on the Carriage of Goods by Sea (Hamburg Rules) and the 1980 United Nations Convention on International Multimodal Transport of Goods (Multimodal Rules). The United Nations Commission on International Trade Law has prepared a wholly new uniform set of rules, the Draft Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, presented to the General Assembly in October 2008. States that are not party to a particular convention may choose to legislate the rules into carriage contracts, for example, Canada implements the Hague-Visby Rules through the Marine Liability Act. Each set of rules applies to marine transportation in the Arctic just the same as in any other ocean area.

Intergovernmental and non-governmental organizations also influence the standard of care set out in a carriage contract. Since 2006, a number of classification societies have introduced winterization guidelines for navigation in cold climates that establish standards of ship preparedness for Arctic shipping, thereby indirectly establishing the expected minimum standard of reasonable care for cargo.

The commercial carriage of passengers by sea, whether on ferries or cruise ships, is internationally regulated by the 1974 Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea and its protocols of 1976 and 1990 not yet in force. A further protocol concluded in 2002 is also not yet in force: the consolidated treaty will be known as the Athens Convention, 2002. The carrier is responsible for the safety of everyone on board, whether crew, cruise company employees or fare paying passengers. The Athens Convention establishes liability rules and limitations for personal injuries to passengers and loss or damage to their luggage. The safety criteria to be followed in order to negate a finding of negligence are established by the international shipping practices of operators, for example, Association of Arctic Expedition Cruise Operators Guidelines, as well as by SOLAS and other binding IMO shipping safety rules.

Arctic Council, 2009, Arctic Marine Shipping Assessment (AMSA), Arctic Council.©