Shipping & International Trade Law

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1 Shipping & International Trade Law This second edition of Shipping & International Law aims to provide a first port of call for clients and lawyers to start to appreciate the issues in numerous maritime jurisdictions. Each chapter is set out in such a way that readers can make quick comparisons between the litigation terrain in each country, determining the differences between, for example, the rights of cargo interests to claim for cargo loss or damage in Italy and England. A remarkable breadth of jurisdictions is covered, while the contributors are all leading lawyers in their countries and are ideally placed to provide practical, straightforward commentary on the inner workings of their respective legal systems. SECOND EDITION 2015 Shipping & International Trade Law General Editor: David Lucas, Hill Dickinson LLP Shipping & International Trade Law Jurisdictional comparisons Second edition 2015 Preface Norman Hay Cargill International SA Foreword David Lucas Hill Dickinson LLP Angola João Afonso Fialho & José Miguel Oliveira Miranda Correia Amendoeira & Associados in association with Fátima Freitas Advogados Argentina Fernando Ramón Ray & Alejandro José Ray Edye, Roche, De La Vega & Ray Australia Geoff Farnsworth & Natalie Puchalka Holding Redlich Canada Douglas G Schmitt Alexander Holburn Beaudin + Lang LLP China Chen Xiangyong & Wang Hongyu Wang Jing & Co Cyprus Vassilis Psyrras, Andreas Christofides & Costas Stamatiou Andreas Neocleous & Co LLC Denmark Johannes Grove Nielsen Bech-Bruun England & Wales David Lucas, Jeff Isaacs & David Pitlarge Hill Dickinson LLP Finland Ulla von Weissenberg & Linda Ojanen Attorneys at Law Borenius Ltd LLP France Laurent Garrabos BCW & Associés Germany Jobst von Werder & Ingo Gercke REMÉ Rechtsanwälte Greece Maria Moisidou Hill Dickinson International Hong Kong Damien Laracy & Michael Ng Laracy & Co and Mike Mallin Hill Dickinson Hong Kong LLP India Prashant S Pratap Indonesia Juni Dani Budidjaja & Associates Israel Amir Cohen-Dor S Friedman & Co Italy Paolo Manica & Michele Mordiglia Studio Legale Mordiglia Japan Tetsuro Nakamura, Tomoi Sawaki & Minako Ikeda Yoshida & Partners Malta Dr Ann Fenech & Dr Adrian Attard Fenech and Fenech Advocates Mexico Enrique Garza, Roger Rodriguez & Ramiro Besil Garza Tello & Asociados SC Mozambique João Afonso Fialho & Sofia Paramés Miranda Correia Amendoeira & Associados in association with Pimenta Dionísio & Associados The Netherlands Wilbert ten Braak, Rene van Leeuwen, Hans Posthumus Meyjes & Elisabeth T A Naaykens Hampe Meyjes advocaten Nigeria Emmanuel Achukwu The Campbell Law Firm Panama Jorge Loaiza III Arias, Fabrega & Fabrega Peru Percy Urday Moncloa, Vigil, Del Rio & Urday Poland Sławomir Nowicki, Alina Łuczak, Katarzyna Bielarczyk & Agnieszka Nowicka Wybranowski Nowicki Law Office Portugal João Afonso Fialho & José Miguel Oliveira Miranda Correia Amendoeira & Associados Russia Elena Popova Sokolov Maslov & Partners Singapore Raghunath Peter Doraisamy Selvam LLC South Africa Shane Dwyer & Jennifer Finnigan Shepstone & Wylie South Korea Byung-Suk Chung Kim & Chang Spain Verónica Meana Larrucea & Santiago López-Caravaca Boluda Meana Green Maura & Co Turkey Emre Ersoy & Zihni Bilgehan Ersoy Bilgehan Lawyers and Consultants Ukraine Alexander Kifak & Artyom Volkov ANK Law Office United Arab Emirates Adrian Chadwick & Raymond Kisswany Hadef & Partners United States John Kimball & Emma Jones Blank Rome LLP General Editor: David Lucas Hill Dickinson LLP

2 Shipping & International Trade Law Jurisdictional comparisons Second edition 2015 General Editor: David Lucas, Hill Dickinson LLP

3 General Editor David Lucas, Hill Dickinson LLP Commercial Director Katie Burrington Commissioning Editor Emily Kyriacou Senior Editor Callie Leamy Publishing Assistant Nicola Pender Publications Editor Dawn McGovern Published in 2014 by Thomson Reuters (Professional) UK Limited trading as Sweet & Maxwell Friars House, 160 Blackfriars Road, London SE1 8EZ (Registered in England & Wales, Company No Registered Office and address for service: 2nd floor, Aldgate House, 33 Aldgate High Street, London EC3N 1DL) Printed and bound in the UK by Polestar UK Print Limited, Wheaton A CIP catalogue record for this book is available from the British Library. ISBN: Thomson Reuters and the Thomson Reuters logo are trademarks of Thomson Reuters. Crown copyright material is reproduced with the permission of the Controller of HMSO and the Queen s Printer for Scotland. While all reasonable care has been taken to ensure the accuracy of the publication, the publishers cannot accept responsibility for any errors or omissions. This publication is protected by international copyright law. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, or stored in any retrieval system of any nature without prior written permission, except for permitted fair dealing under the Copyright, Designs and Patents Act 1988, or in accordance with the terms of a licence issued by the Copyright Licensing Agency in respect of photocopying and/or reprographic reproduction. Application for permission for other use of copyright material including permission to reproduce extracts in other published works shall be made to the publishers. Full acknowledgement of author, publisher and source must be given Thomson Reuters (Professional) UK Limited

4 Contents Contents Preface to the first edition Norman Hay Cargill International SA v Foreword to the first edition David Lucas Hill Dickinson LLP vii Foreword to the second edition David Lucas Hill Dickinson LLP xi Angola João Afonso Fialho & José Miguel Oliveira Miranda Correia Amendoeira & 1 Associados in association with Fátima Freitas Advogados Argentina Fernando Ramón Ray & Alejandro José Ray 27 Edye, Roche, De La Vega & Ray Australia Geoff Farnsworth & Natalie Puchalka Holding Redlich 47 Canada Douglas G. Schmitt Alexander Holburn Beaudin + Lang LLP 65 China Chen Xiangyong and Wang Hongyu Wang Jing & Co 85 Cyprus Vassilis Psyrras, Andreas Christofides & Costas Stamatiou 105 Andreas Neocleous & Co LLC Denmark Johannes Grove Nielsen Bech-Bruun 127 England & Wales David Lucas, Jeff Isaacs & David Pitlarge Hill Dickinson LLP 145 Finland Ulla von Weissenberg & Linda Ojanen Attorneys at Law Borenius Ltd LLP 177 France Laurent Garrabos BCW & Associés 195 Germany Jobst von Werder & Ingo Gercke REMÉ Rechtsanwälte 219 Greece Maria Moisidou Hill Dickinson International 239 Hong Kong Damien Laracy & Michael Ng Laracy & Co and 271 Mike Mallin Hill Dickinson Hong Kong LLP India Prashant S. Pratap, Senior Advocate 307 Indonesia Juni Dani Budidjaja & Associates 321 Israel Amir Cohen-Dor S Friedman & Co 337 Italy Paolo Manica & Michele Mordiglia Studio Legale Mordiglia 357 Japan Tetsuro Nakamura, Tomoi Sawaki & Minako Ikeda Yoshida & Partners 371 Malta Dr Ann Fenech & Dr Adrian Attard Fenech and Fenech Advocates 385 Mexico Enrique Garza, Roger Rodriguez & Ramiro Besil 407 Garza Tello & Asociados SC Mozambique João Afonso Fialho & Sofia Paramés Miranda Correia Amendoeira 435 & Associados in association with Pimenta Dionísio & Associados The Netherlands Wilbert ten Braak, Rene van Leeuwen, Hans Posthumus Meyjes 463 & Elisabeth TA Naaykens Hampe Meyjes advocaten Nigeria Emmanuel Achukwu The Campbell Law Firm 477 EUROPEAN LAWYER REFERENCE SERIES iii

5 Contents Panama Jorge Loaiza III Arias, Fabrega & Fabrega 497 Peru Percy Urday Moncloa, Vigil, Del Rio & Urday 515 Poland Sławomir Nowicki, Alina Łuczak, Katarzyna Bielarczyk & 533 Agnieszka Nowicka Wybranowski Nowicki Law Office Portugal João Afonso Fialho & José Miguel Oliveira Miranda Correia Amendoeira 557 & Associados Russia Elena Popova Sokolov, Maslov & Partners 581 Singapore Raghunath Peter Doraisamy Selvam LLC 599 South Africa Shane Dwyer & Jennifer Finnigan Shepstone & Wylie 623 South Korea Byung-Suk Chung Kim & Chang 647 Spain Verónica Meana Larrucea & Santiago López-Caravaca Boluda 667 Meana Green Maura & Co Turkey Emre Ersoy & Zihni Bilgehan Ersoy Bilgehan Lawyers and Consultants 685 Ukraine Alexander Kifak & Artyom Volkov ANK Law Office 703 United Arab Emirates Adrian Chadwick & Raymond Kisswany Hadef & Partners 721 United States John Kimball & Emma Jones Blank Rome LLP 739 Contact details 755 iv EUROPEAN LAWYER REFERENCE SERIES

6 Preface to first edition Preface to the first edition Cargill International SA Norman Hay I am greatly honoured to be asked to write the preface to this timely worldwide review of shipping and trading law. Over the last 30 years, the volume and variety of international trade in and shipping of commodities has grown dramatically. Liberalisation of global markets, and the need for commodity inputs as those markets have developed, have promoted this growth. International shipping trade is central to the economy of the planet. Without it, there can be no increase in economic value which allows billions of people to raise themselves out of poverty. However, as with all such rapid growth, there comes a parallel increase in risk associated with the commodities being transported and the vessels undertaking such transport. The notion of risk in international trade goes back thousands of years and in each period of growth there has been the need for legal frameworks to handle disputes. The necessity for such legal systems is of utmost importance to the trade itself. Without such structures, an understanding of where risk occurs and how to mitigate it becomes clouded and there will be a drag on the growth of trade itself. This book represents a milestone in providing an international comparative survey of legal risks, issues and indeed opportunities pertaining to shipping and trading activities. The volume takes a pragmatic approach by setting out a series of answers to questions that confront market participants to illustrate the variety and types of legal dispute that can arise, and to help managers and practitioners navigate through the risk areas. The sheer size and complexity of the shipping and trading business would, on its own, lead to significant legal disputes. In addition, however, there has been a substantial increase in price volatility in the markets for the goods that these vessels carry. This volatility is increasing as the list of importing and exporting countries and the variety of the goods they trade also increases dramatically. While the companies and businesses involved in international trade have adopted a wide variety of methods to limit their risk (eg, stringent counterparty credit control, surveillance technologies and sophisticated trading instruments), such methods are insufficient to reduce to zero default risk and the inevitable legal disputes. This volume provides invaluable introductions to the diverse ways in EUROPEAN LAWYER REFERENCE SERIES v

7 Preface to the first edition which the various legal systems address common forms of default and the legal remedies which are available to the parties to resolve their differences. The majority of international trade and shipping contracts are governed by English Law. However, given the vast number of countries now engaged in trade, it is inevitable that other legal systems will impinge on the underlying contracts. This volume details and examines how such legal overlap can occur and presents new ideas on the implications and the methodologies that parties faced with legal disputes can adopt in such conflicting situations. Without a doubt, this volume provides a unique set of insights into this complicated but incredibly important area of global trade and its authors and editors are to be commended on the quality of the analysis. Norman Hay, President, Cargill International SA Geneva, 2011 vi EUROPEAN LAWYER REFERENCE SERIES

8 Foreword to the first edition Foreword to the first edition Hill Dickinson LLP David Lucas Until recently, shipping and commodities law was considered by the wider world to be a fairly esoteric specialism of restricted general relevance. Laymen hardly focused on vagaries of market movements (except during times of historic crisis such as the aftermath of the Yom Kippur War) let alone the transnational impact of those movements. Now, all that has changed. Everyone in the world who has to buy food, fuel, garments or who has access to the media is only too well aware of the impact of fluctuations in commodity prices. They have seen the prices of, say, wheat and sugar soar (roughly doubling in the six months from June 2010), cotton rocket (almost quadrupling in the two years from early 2009), crude oil rise inexorably (almost tripling in the same period), back nearly to the dizzy heights reached before the collapse in mid Similar rises have been experienced with non-ferrous metals, iron ore, coal, fertilisers and numerous other commodities. The list is almost endless. All these price movements are, virtually without exception, overshadowed by the quite spectacular boom and bust of Equally, freight rates have undergone even more spectacular convulsions with, for example, the Baltic Dry Index rising to well over 11,000 in mid- 2008, before collapsing to less than a mere tenth of that figure within the space of a very few months. The causes of this turmoil in the markets are too well known to merit repetition in this brief introductory Foreword. But what does merit consideration here is the stark way in which such turmoil illustrates the interconnectedness of the modern world. When China imports record quantities of crude oil, prices at the petrol pumps in Europe rise. When Russia suffers drought and bans wheat exports, the price of bread in Egypt soars. This would not happen if the modern world economy were not so inextricably wedded to international trade on a vast scale. The world as it has fashioned itself could not exist without it. Although trade between nations and regions goes back to the ancient Phoenicians and perhaps beyond, the present level of global interdependence is unprecedented. The rest of this volume will be devoid of statistics, so I hope I will be forgiven for offering just three sets of impressive figures which, I suggest, place in context the importance of the topics covered in this book: about 90 per cent of world trade is carried by the international shipping industry; EUROPEAN LAWYER REFERENCE SERIES vii

9 Foreword to the first edition according to the International Maritime Organisation, in 2008 (the last year for which figures are currently available) there were almost 53,000 cargo carrying ships with a total deadweight of almost 1.2 billion tonnes (almost double the figure for 1990). Cargo traffic exceeded 8 billion tonnes and almost 34 billion tonne miles were sailed; and seaborne trade in the main bulk cargoes (iron ore, grain, coal, bauxite/ alumina and phosphate) grew from 448 million tonnes in 1970 to 1,997 million tonnes in 2007 and other dry cargoes grew from 676 million tonnes to 3,344 million tonnes in the same period. The economic interdependence of the modern world economy is reflected in the interdependence of its diverse national legal systems. Legal practitioners in the field of international trade, whether in law firms or inhouse, will be only too familiar with the need, often the very urgent need, to seek advice, assistance or local intervention, whether in the courts or with local authorities, in jurisdictions worldwide. Although English law remains the most common choice of governing law in trade-related contracts and the English court or arbitral jurisdiction remains the most popular contractual forum, other legal systems and fora are frequently chosen (particularly with the burgeoning growth of international arbitration) and, irrespective of contractual choice, often become relevant to the challenges facing a party in crisis. Examples are boundless but include: a ship owner whose vessel faces arrest; a cargo owner whose goods face the exercise of a lien by the ship owner; a buyer who is seeking to prevent a bank from paying under a letter of credit against fraudulent documents; unexpectedly, a transaction suddenly involves dealings with a state or entity subject to UN, EU or US sanctions; an underwriter of cargo on board a vessel which has suffered a collision. Advice may be needed as a matter of extreme urgency in one or more relevant jurisdictions where the crisis is occurring. The purpose of this volume is to give those involved, or potentially involved, in such a crisis a brief and readily accessible guide as to how the relevant issues might be approached in the affected jurisdiction or jurisdictions. Needless to say, it cannot be a substitute for formal advice from a lawyer well versed in the relevant legal system after he has been fully briefed, but it is hoped that the short summaries of key legal issues will assist those seeking to manage a crisis by focusing expectations and enabling them to brief local lawyers with an awareness of the opportunities and pitfalls afforded by the relevant legal system. Within the constraints of the format of this volume it has only been possible to provide summaries of the law in a limited number of legal systems. To those states not represented, and to those who had hoped for guidance as to the law in any of those states, I extend my apologies. I could not have carried out my functions in the preparation of this book without the tireless efforts of many to whom my profuse thanks are gladly offered. Also thanks to the eminent lawyers in the various jurisdictions who had so unstintingly given their time and expertise in providing their respective chapters. My colleagues at Hill Dickinson LLP, Jeff Isaacs, Andrew Meads, Andrew Buchmann and David Pitlarge, provided enormous help viii EUROPEAN LAWYER REFERENCE SERIES

10 Foreword to the first edition both in formulating and refining the questionnaire for each chapter (which had to be thoughtfully composed to elicit the most helpful responses from our contributors) and in contributing the substantive content of the English chapter. Kay O Brien worked selflessly to coordinate the project and to keep it on track. Not least, my warm thanks are owed to Michele O Sullivan, the International Director, Emily Kyriacou, the Commissioning Editor, and the editorial team, for both inspiring me and my colleagues to undertake this project and tirelessly bringing it to fruition. David Lucas, Hill Dickinson General Editor London, 2011 EUROPEAN LAWYER REFERENCE SERIES ix

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12 Foreword to the second edition Foreword to the second edition Hill Dickinson LLP David Lucas When the publishers asked Hill Dickinson to work with them on a second edition of this volume, my immediate reaction was that it might be premature, given that the basic principles in the various legal systems covered in the first edition were perhaps unlikely to have changed that much, if at all; and this book never claimed to cover more than basic principles, given that in the first edition 25 jurisdictions were covered within the span of just 400 pages. However, it was pointed out to me that this would be an opportunity to expand the scope of the book to cover a number of jurisdictions which, for very good practical reasons, we had been unable to cover first time round. This opportunity has been seized with enthusiasm and I am delighted that this second edition has been expanded to cover some 36 jurisdictions, including many of considerable significance to the international trade and shipping community. In the Foreword to the first edition, I described the commercial and geopolitical trends and convulsions, natural catastrophes and conflicts which so often underlay and drove the issues which had confronted international trade and shipping lawyers every day in their work: Such events did not of course cease with the first edition: a mere list of names, acronyms and words suffices to make the point: Syria, Ukraine, sanctions, OFAC, Costa Concordia, Ebola This list could be expanded indefinitely. Market prices of commodities and freight rates have of course continued to fluctuate not as wildly, perhaps, as in some previous times, but sufficiently to drive defaults and thus to generate disputes between market participants. Meanwhile, statistics have continued to balloon. In the Forward to the first edition, I noted that in 2008 the world fleet of cargo carrying vessels accounted for a total deadweight of almost 1.2 billion tonnes; by January 2013 that figure had risen to 1.63 billion tonnes. Although the rate of growth of world GDP has slowed, nonetheless between 2008 and 2012 total cargo traffic increased from 8 to 9.2 billion tonnes. Just as trade continues to expand, so does the need for legal advice in multiple jurisdictions. As before, it is my pleasure to thank the numerous contributors to this book for their support and time-consuming work aimed at making it as useful as possible to its readers. My colleagues at Hill Dickinson LLP, Jeff Isaacs and David Pitlarge have greatly contributed to the review and EUROPEAN LAWYER REFERENCE SERIES xi

13 Foreword to the second edition updating of the English chapter. Not least, grateful thanks are due to the team at Thomson Reuters who have brought this second edition about: Emily Kyriacou, Katie Burrington, Dawn McGovern, Nicola Pender and Callie Leamy. David Lucas, Hill Dickinson General Editor London, 2014 xii EUROPEAN LAWYER REFERENCE SERIES

14 Hong Kong Laracy & Co in Association with Hill Dickinson Hong Kong LLP Damien Laracy & Michael Ng; and Hill Dickinson Hong Kong LLP in Association with Laracy & Co Mike Mallin INTRODUCTION: HONG KONG S LEGAL SYSTEM Since the handover of sovereignty by the United Kingdom to the People s Republic of China on 1 July 1997, Hong Kong has operated under the Basic Law, which has been described as a mini-constitution for the region. The Basic Law provides for the underlying principle of one country, two systems. A key feature of this principle is that the socialist system and policies of the PRC are not and will not be practised in Hong Kong, and the previous capitalist system is to stay unchanged for 50 years. Part and parcel of that is the maintenance of all the laws previously in force in Hong Kong before the handover, including the common law, the rules of equity, statutes, subordinate legislation and Chinese (pre-revolution, Qing Dynasty) customary law provided that they do not contravene the Basic Law and legislation enacted by the legislature of Hong Kong. As a result, Hong Kong s shipping and international trade law has been largely unaltered by the handover. Furthermore, a hallmark of the common law system is growth and evolution through judicial decisions, and it is not the case that Hong Kong s common law became frozen as from 1 July In fact, even after the handover, the Hong Kong courts continue to derive assistance from overseas jurisprudence, including the decisions of final appellate courts in various common law jurisdictions as well as decisions of supra-national courts (Solicitor (24/07) v Law Society of Hong Kong (2008) 11 HKCFAR 117 at [16]). In particular, due to Hong Kong s legal system having its origins in the British legal system, the decisions of the English Privy Council and the House of Lords (now Supreme Court) are to be treated with great respect by the Hong Kong Courts (Solicitor (24/07) v Law Society of Hong Kong (2008) 11 HKCFAR 117 at [17]). Therefore not only has Hong Kong s shipping and international trade law been preserved after 1997, its judicial development has continued to be influenced by other jurisdictions (especially common law jurisdictions). Accordingly, for this chapter reference will be made to English and other common law authorities, as the Hong Kong courts themselves do in practice. As such, there will inevitably be some degree of overlap with this work s chapter on England & Wales. EUROPEAN LAWYER REFERENCE SERIES 271

15 One main area in which Hong Kong law has not developed in line with English law is where international/treaty law is involved. This effect has been especially pronounced in circumstances where English law has changed as a result of the United Kingdom s EU membership. Hong Kong judges obviously cannot import treaties into Hong Kong law where Hong Kong has not ratified those treaties, simply out of the desire to follow English precedents. Though they are few and far in between, there are several examples of this issue leading to Hong Kong law diverging from English law. 1. CONTRACTS OF CARRIAGE 1.1 Jurisdiction/proper law In the absence of express provisions in a bill of lading (or charterparty), by what means will the proper law of the contract be determined? Unlike current English law, which gives effect to the EEC Convention on the Law Applicable to Contractual Obligations (the Rome Convention ) through domestic legislation, the Hong Kong courts continue to apply the traditional common law principles for determining the proper law of a contract. This is a distinction of some significance because there are certain presumptions contained in the Rome Convention that are not available under common law, such as the presumption of characteristic performance and the presumption that the contract is most closely connected with the principal place of business of the party who is to effect the characteristic performance. Thus in First Laser Ltd v Fujian Enterprises (Holdings) Co Ltd, both the Hong Kong Court of Appeal and the Court of Final Appeal found that the first instance judge had been influenced by the presumptions in the Rome Convention, which led to insufficient weight being given to the subject matter of the agreement and its place of performance ([2011] 2 HKLRD 45; and (2012) 15 HKCFAR 569). The Court of Final Appeal observed The Rome Convention rule does not reflect the common law, because it emphasises the place where the party is based, rather than the place where performance is to be effected (First Laser Ltd v Fujian Enterprises (Holdings) Co Ltd (2012) 15 HKCFAR 569 at [55]). Under traditional common law principles, in the absence of an express choice of law clause, the Hong Kong courts will examine two matters to determine the proper law of the contract: whether the facts of the case justify inferring an implied choice of law clause into the contract of carriage; and failing that which system of law has the closest and most real connection to the contract. As to the first matter, the courts will consider whether the parties intended by implication that their contract should be governed by Hong Kong law. This is assessed by what ordinary reasonable businessmen would be likely to have agreed to if they had directed their minds to the question (Century Yachts Ltd v Xiamen Celestial Yacht Ltd [1994] 1 HKLR 385, at 393). Regarding the second matter, it is useful to refer to Bokhary JA s judgment in S Megga Telecommunications Ltd v Etowaru Co Ltd [1995] 2 HKC 761, at 767 (Court of Appeal): 272 EUROPEAN LAWYER REFERENCE SERIES

16 In the present case, there was no express choice of the proper law. Nor can one reliably draw any inference as to the intention of either side in that regard. It seems very likely that the parties deliberately refrained from making an express choice as to the proper [sic] because they could not agree upon one. In those circumstances, our task is to decide which system of law is the one with which the contract has the closest and most real connection, and to hold that the contract is governed by that system and its laws. In the context of a contract of carriage, the following factors have been cited as relevant to the question of which system of law has the closest and most real connection to the contract (The Dong Do [1991] 2 HKLR 563, at 566; and Trane Co v Hanjin Shipping Co Ltd (Unreported, 31 July 2001, Court of First Instance, Stone J, HCCL 215/1999) at [18]): where the bill of lading is issued; the place(s) of incorporation/residence of the relevant parties; the place of shipment; the place of delivery (ie, where the consignees are located); and the applicable carriage of goods by sea regime or legislation Will a foreign jurisdiction or arbitration clause necessarily be recognised? Lord Wright in the Privy Council s decision of Vita Food Products v Unus Shipping Co stated that the (English) courts will allow contracting parties a free choice of their governing proper law subject only to three qualifications ([1939] AC 277, at 290). These three exceptions have been adopted by the Hong Kong courts (The Cavalry [1987] HKLR 287, at 294), and they are that the clause must be: bona fide; legal; and not contrary to public policy. These exceptions seldom arise in practice. Therefore the Hong Kong courts will almost invariably recognise and give effect to foreign jurisdiction clauses. A plaintiff who brings court proceedings in Hong Kong in breach of a foreign jurisdiction clause bears the burden to show that there is strong cause for not granting a stay (The Thorscan [1998] 1 HKLRD 881, at 886, following The El Amria [1981] 2 Lloyd s Rep 119). In respect of foreign arbitration clauses, under Article 8(1) of the UNCITRAL Model Law, which is reproduced in section 20(1) of Hong Kong s Arbitration Ordinance (Cap. 609), it is mandatory for the Hong Kong courts to stay proceedings brought in breach of an arbitration agreement if a party so requests not later than when submitting his first statement on the substance of the dispute unless the arbitration agreement is null and void, inoperative or incapable of being performed. EUROPEAN LAWYER REFERENCE SERIES 273

17 1.1.3 In the event that an injunction or order preventing proceedings is obtained in the agreed jurisdiction (whether court or arbitration), will this be recognised in your court? There are a number of authorities on the circumstances under which the Hong Kong courts would grant anti-suit/anti-arbitration injunctions to prevent proceedings from being commenced abroad in breach of a jurisdiction/arbitration clause in favour of Hong Kong. However there appears to be no reported case precisely on the point of whether the Hong Kong courts will recognise an anti-suit/anti-arbitration injunction obtained in a foreign agreed jurisdiction. It is not difficult to imagine why, however. This is because under the analysis in above, the very fact that a plaintiff has attempted to bring proceedings in Hong Kong in breach of a foreign jurisdiction/arbitration clause will almost, in and of itself, be sufficient ground for the defendant to obtain a stay from the Hong Kong court. If on top of breaching the said foreign jurisdiction/arbitration clause, there is also a foreign anti-suit/antiarbitration injunction given by an overseas court in the agreed jurisdiction, it becomes even more likely that the Hong Kong court will grant a stay of the Hong Kong proceedings Arbitration clauses Will an arbitration and/or a jurisdiction clause set out in an incorporated document (such as a charterparty referred to in a bill of lading) be recognised if its text is not set out in the contract in question? Section 19(1) of Hong Kong s Arbitration Ordinance (Cap. 609) incorporates, inter alia, Article 7(6) of the UNICITRAL Model Law, which provides: The reference in a contract to any document containing an arbitration clause constitutes an arbitration agreement in writing, provided that the reference is such as to make that clause part of the contract. Furthermore, section 19(3) of the Arbitration Ordinance (Cap. 609) adds: A reference in an agreement to a written form of arbitration clause constitutes an arbitration agreement if the reference is such as to make that clause part of the agreement. Therefore so long as reference is made to either a document containing an arbitration clause, or a written form of arbitration clause so as to make that clause part of the agreement, then it matters not that the actual text of the arbitration agreement is not set out in the contract in question Will the incorporation of an unsigned arbitration agreement into a contract be recognised? Section 19(2)(a) of the Arbitration Ordinance (Cap. 609) specifically provides that an arbitration agreement is in writing if the agreement is in a document whether or not the document is signed by the parties to the agreement. Therefore there is no doubt that the incorporation of an unsigned arbitration agreement into a contract will be recognised. 274 EUROPEAN LAWYER REFERENCE SERIES

18 1.1.5 In any event, will all of the provisions of a charterparty incorporated into a bill of lading contract be recognised? Specifically, if a charterparty with an arbitration clause is incorporated into a bill of lading, is it necessary for the incorporating words to make express mention of the arbitration clause of the charter? Thomas v Portsea [1912] AC 1 and The Federal Bulker [1989] 1 Lloyd s Rep 103 are both English authorities for the principle that general words of incorporation in a bill of lading are not sufficient to incorporate an arbitration clause contained in a charterparty. In other words, express mention of the arbitration clause in the bill of lading s incorporation clause is necessary to incorporate the arbitration clause into the bill of lading. These English cases were examined by the Hong Kong High Court in Astel-Peiniger Joint Venture (A Joint Venture Partnership) v Argos Engineering & Heavy Industries Co Ltd [1995] 1 HKLR 300. In obiter, Kaplan J tentatively affirmed Thomas v Portsea and The Federal Bulker but only in the context of dealing with negotiable instruments like bills of lading (His Lordship distinguished the case before him which was a construction dispute not involving shipping documents) (Astel-Peiniger Joint Venture (A Joint Venture Partnership) v Argos Engineering & Heavy Industries Co Ltd [1995] 1 HKLR 300, at 310). It would therefore be prudent to make express mention of the arbitration clause contained in the charterparty if one is minded to incorporate it into a bill of lading under Hong Kong law If a bill of lading refers to the terms of a charterparty, but without identifying it (eg, by date): See above at In the case of a Congen bill of lading, and to avoid any issue as to which particular charterparty terms are incorporated, care should be taken to insert the date of the relevant incorporated charterparty on the face of the bill of lading. This avoids the Re Yaoki type problems see following Will incorporation be recognised without such detail? See above and below If so, which charterparty will be incorporated? Practical difficulties may of course arise where the bill of lading refers to or purports to incorporate the terms of a charterparty, but it is not completely clear which charterparty in the chain of charterparties concerning the vessel the parties intended to incorporate. For instance, in Re Yaoki (Unreported, 15 May 2006, Court of First Instance, Waung J, HCAJ 134/2005) the bill of lading contained the following terms: Charter Party dated AS PER CHARTER PARTY at PER CHARTER PARTY at PER CHARTER PARTY between AS PER CHARTER PARTY and AS PER CHARTER PARTY as Charterer and all the terms whatsoever of the said Charter Party including the Arbitration clause ; and EUROPEAN LAWYER REFERENCE SERIES 275

19 Arbitration Any and all differences and disputes of whatsoever nature arising out of this Bill of lading shall be put to Arbitration in the City of New York or in the City of London, whichever place is specified in the Charter and in accordance with the Arbitration clause therein. The problem was that there were two charterparties in existence: (1) a head time charter which had a London arbitration clause; and (2) a voyage charter which had no arbitration but only an exclusive jurisdiction clause for the London High Court. The fact that the charterparty was not specifically identified (eg, by date) was not an impediment to the incorporation of its terms into the bill of lading. Waung J held that the relevant charterparty the parties intended to incorporate was the head time charter, and His Lordship commented that this conclusion was consistent with the general rule (repeatedly stated in various editions of Scrutton) that general reference will normally be construed as relating to the head charter (Re Yaoki (Unreported, 15 May 2006, Court of First Instance, Waung J, HCAJ 134/2005), at [8]). Accordingly, the plaintiff s argument that the voyage charter s exclusive jurisdiction clause somehow ousted the arbitration clause in the bill of lading was rejected. The plaintiff s Hong Kong proceedings were therefore stayed in favour of London arbitration. 1.2 Parties to the bill of lading contract How is the carrier identified? In particular, what is the relationship between statements on the face of the bill and/or the signature by or on behalf of the Master and demise clauses/identity of carrier clauses? As is discussed in the chapter on England & Wales in this work (see section in that chapter) the House of Lords decision in The Starsin [2003] 1 Lloyd s Rep. 571 shifted the emphasis on the identity of the carrier problem to the face of the bill of lading, and away from the standard terms on the back. This was said to be how a reasonable person, versed in the shipping trade, would read a bill of lading. The Starsin has been followed in Hong Kong: Esgame Co Ltd v Freight Overseas Co Ltd (Unreported, 27 July 2007, District Court, Judge Wong, DCCJ 1845/2006), at [17]; and Vastfame Camera Ltd v Birkart Globistics Ltd [2005] 4 HKC 117, at [58] [59]. In the latter case, Stone J held: On this issue I bear in mind the observations of their Lordships in The Starsin to the effect that when a bill of lading contains on its face an apparently clear and unambiguous statement of who is the carrier it is difficult to accept that a shipper would expect to have to resort to the detailed conditions on the reverse of the bill in an attempt to discover with whom he was contracting. This approach means that shippers and holders of bills of lading can literally take a bill of lading at face value so far as the identity of the carrier issue is concerned. 276 EUROPEAN LAWYER REFERENCE SERIES

20 1.2.2 Who is entitled to sue for loss or damage arising out of the carrier s alleged default? In particular, by what means, if at all, are rights under the contract of carriage transferred? The original shipper who contracts with the carrier can sue for loss or damage to his/her cargo. Due to the concept of privity of contract in English and Hong Kong contract law, however, the rights of the shipper were not available to the consignee as a matter of common law. Therefore statutory provisions were enacted to allow the shipper s rights to be transferred. Hong Kong s Bills of Lading and Analogous Shipping Documents Ordinance (Cap. 440), BLASDO ) is in all material respects identical to the English Carriage of Goods by Sea Act ( CGSA ) Section 4(1) of BLASDO supplements the common law position and also confers the right to sue the carrier to the lawful holder of a bill of lading, the consignee identified in a sea waybill, or the person entitled to delivery under a ship s delivery order, regardless of whether they are the owners of the goods covered by the document. If a bill of lading no longer gives a right to possession of the goods, or also known as a spent or stale bill of lading, and a person becomes the lawful holder of it, the person shall not have any rights transferred to him/ her by virtue of section 4(1) of BLASDO, subject to two exceptions. These two exceptions are the only scenarios in which a transferee can obtain contractual rights under a spent/stale bill of lading (section 4(2) of BLASDO): he/she becomes the holder of the bill by virtue of a transaction effected pursuant to any contractual or other arrangements made before the bill became spent; or he/she is a seller who becomes holder of the bill as a result of the goods being rejected by the buyer and the bill is returned to the seller as a result. Once rights are transferred pursuant to BLASDO, the rights of the original shipper and any intermediate holder(s) will be extinguished (section 4(5) of BLASDO). BLASDO mirrors the English CGSA 1992 in that it does not require the transferee of rights to have property in the goods (cf the old English CGSA 1855 which did require the transferee of rights to have obtained property by reason of indorsement or consignment). The liability of the original shipper, eg, for unpaid freight or shipping dangerous cargo, is not extinguished by virtue of any transfer of rights and/ or liabilities to another party (section 5(3) of BLASDO). 1.3 Liability regimes Which cargo convention applies Hague Rules/Hague Visby Rules/ Hamburg Rules? If such convention does not apply, what, in summary, is the legal regime? Hong Kong applies the Hague Rules as amended by the Visby Protocol (the HVR ). The HVR are given the force of law in Hong Kong by way of legislation, namely the Carriage of Goods by Sea Ordinance (Cap. 462, COGSO ). EUROPEAN LAWYER REFERENCE SERIES 277

21 1.3.2 Have the Rotterdam Rules been ratified? Hong Kong has not ratified the Rotterdam Rules. The People s Republic of China has however given its verbal support for the Rotterdam Rules. Under Article 153 of the Basic Law, treaties to which the People s Republic of China is or becomes a party do not automatically apply to Hong Kong, but the Central People s Government can decide whether or not an international agreement shall apply to Hong Kong in accordance with the circumstances and needs of the Region, and after seeking the views of the government of the Region. The Hong Kong Special Administrative Region has, so far as the authors are aware, not expressed any view regarding the Rotterdam Rules Do the Hague/Hague Visby Rules apply to straight bills of lading? The HVR are applicable to straight bills of lading under Hong Kong law. Put another way, straight bills are treated as similar documents of title for the purpose of applying Article I(b) of the HVR. See Carewins Development (China) Ltd v Bright Fortune Shipping Ltd [2007] 3 HKLRD 396, in which the Hong Kong Court of Final Appeal followed the English House of Lords decision in The Rafaela S [2005] 2 AC Are any such rules compulsorily applicable to shipments either from your jurisdiction or to it (or both)? Hong Kong s COGSO gives the HVR the force of law. Article X of the HVR has also been adopted without modification. Accordingly, the HVR will apply compulsorily to every bill of lading relating to the carriage of goods between ports if: the bill of lading is issued in a contracting state; or the carriage is from a port in a contracting state; or the contract contained in or evidenced by the bill of lading provides that the HVR or legislation of any state giving effect to them are to govern the contract regardless of the nationality of the ship, carrier, shipper, consignee or any other interested person. Therefore the HVR will be applied to: all bills of lading issued in Hong Kong/any contracting state to the HVR; all bills of lading for the carriage of goods ex any port of Hong Kong/any contracting state to the HVR; and any bill of lading containing a clause paramount in favour of the HVR. 1.4 Lien rights To what extent will a lien on cargo be recognised? Specifically: There is no Hong Kong case law authority analysing the nature of the lien on cargo in detail. That is not to say, however, that the concept is unknown to Hong Kong shipping practice and the Hong Kong courts. There have been a few cases in which a carrier purported to exercise a lien over cargo to secure the charterer s liabilities (for freight and other liabilities) under the charterparty, resulting in the consignee of the cargo having to put up a guarantee, 278 EUROPEAN LAWYER REFERENCE SERIES

22 under protest, to obtain delivery/release of their cargo see The Jalagopal (Unreported, 31 March 1987, Court of Appeal, Kepmster JA & Power J, 1987 No. 10 (Civil), [1987] HKEC 283; and The Thorscan [1998] 4 HKC 536. The Jalagopal involved an alleged common law lien, while The Thorscan involved an alleged contractual lien as per the terms of the charterparty. In both of these cases, the consignee then sued the carrying vessel in rem, in Hong Kong, for wrongful exercise of a lien on their cargo, claiming a refund for sums paid under the guarantee and damages. The issue of whether the carrier s exercise of a lien over cargo was wrongful or not as a matter of Hong Kong law, was not ultimately addressed by the courts as both cases were disposed of on jurisdictional/procedural grounds. It is submitted that if the topic of lien on cargo were to be determined by the Hong Kong courts, it is likely that reliance will be placed on the existing, well-developed, body of English case law dealing with matters such as: the ambit of the common law lien on cargo; the ambit of the contractual lien on cargo; and when the shipper s liabilities under the bill of lading would be enforceable against the consignee of the cargo. Please see section of the England & Wales chapter in this work Will liens arising out of obligations under the bill of lading contract be enforceable as against the receiver for, eg, freight, deadfreight, demurrage, general average and any shipper s liabilities in respect of the cargo? See above Can the Owner lien cargo for time charter hire? If so, is this limited to hire payable by the cargo owners? See above Is it necessary for the owners to register its right to lien subfreights as a charge against a charterer incorporated in your jurisdiction for that lien to be recognised in the event of the charterer s insolvency? Hong Kong s legislative provisions on securities over personal property, as distinct from real property, is essentially the same as the position in England & Wales (cf the reforms in Canada, Australia and New Zealand). A lien over sub-freights must therefore be registered as a charge with the Hong Kong Companies Registry against the charterer (sections of the Companies Ordinance, Cap. 622). Failure to register the lien as a charge would result in the security interest being void as against any liquidator and creditor of the charterer in the event of the charterer s insolvency. In most cases, the lien would be a floating charge as the charterer would essentially be promising to make sub-freights (ie, a future receivable/book debt) a collateral in favour of the owner. The owner should thus be mindful of crystallisation issues surrounding the floating charge. In this connection, an automatic crystallisation provision in the charterparty may be of utility. EUROPEAN LAWYER REFERENCE SERIES 279

23 2. COLLISIONS 2.1 Is the 1910 Collision Convention in force? The 1910 Collision Convention is in force in Hong Kong, and it is enacted as domestic legislation via the Merchant Shipping (Collision Damage Liability and Salvage) Ordinance (Cap. 508, the CDLSO ). One must be mindful of the enactment history of CDLSO, however, when applying or referring to the provisions of the 1910 Collision Convention in Hong Kong proceedings. The Hong Kong CDLSO was enacted in June 1997, in the lead-up to the handover of sovereignty to the PRC. Before June 1997, the UK Maritime Convention Act 1911 extended to Hong Kong. The CDLSO localised the part of the UK Maritime Convention Act 1911 which gave effect to the 1910 Collision Convention. The articles of the 1910 Collision Convention were not copied verbatim into the Maritime Convention Act 1911, and therefore Hong Kong s CDLSO is not completely in line with the articles of the 1910 Collision Convention either. The plaintiff in Chan Kwai Ha v Wong Chick Bun [2008] 2 HKLRD 259 commenced collision proceedings five years after her barge sank, allegedly due to the defendant s tugging service. The plaintiff was time-barred pursuant to the two year time bar as enacted in the CDLSO. It was suggested by the plaintiff that the court should construe the CDLSO in light of the 1910 Collision Convention, in such a manner so as to allow her to overcome the time bar issue. This approach was rejected by the Court of Appeal: The 1910 Collision Convention is only part of Hong Kong law to the extent that it is enacted by statute. Even where the court construes an ordinance in light of a convention, it must be the text of the ordinance that ultimately governs, not that of the convention. This is because the Legislature may not have enacted a convention in its entirety. A statute may modify the terms of a convention. However wide art. 10 may be, the court can only enforce that part of it which has been brought into effect by the Ordinance. 2.2 To what extent are the Collision Regulations used to determine liability? The International Regulations for Preventing Collisions at Sea 1972 as amended by Resolution A464 (XII) are enacted in Hong Kong via the Merchant Shipping (Safety) (Signals of Distress and Prevention of Collisions) Regulations (Cap. 369N). The extent to which the Collision Regulations are used to determine liability in Hong Kong is neatly encapsulated in Re the Magway (Unreported, 1 August 2002, Court of First Instance, Waung J, Admiralty Action Nos. 14 & 246 of 1999, [2002] HKEC 1023, at paragraph [6]): It is to be noted that in collision cases, what is always important is the percentage of blame and cases would often be decided where the court would hold one party 280 EUROPEAN LAWYER REFERENCE SERIES

24 to be 60%, 70%, 80% or 90% to blame. Each percentage involves very often a great deal of money. So, the correct assessment of the various manoeuvres of the ship which results in the final percentage of blame is vitally important. That assessment of the proper manoeuvre or good seamanship involves knowledge not only of the collision regulations but very often of what could be said to be good seamanship. 2.3 On what grounds will jurisdiction be founded what essentially is the geographical reach? Jurisdiction of the Hong Kong courts is founded by service. For in personam claims, jurisdiction is founded by personal service of the writ on the defendant. This is not likely to be problematic if the in personam defendant is based in Hong Kong. Where the claim is for damage, loss of life or personal injury arising out of a collision between ships or the carrying out of or omission to carry out a manoeuvre, or non-compliance with the collision regulations, and the in personam defendant is located overseas, leave of the Hong Kong Court to serve out is required. Furthermore, service out is only permissible in such cases if one of the following conditions applies (Order 75, rule 4 of the Rules of the High Court ( RHC ); and sections 12C(1) (2) of the High Court Ordinance, Cap. 4): the defendant has his/her habitual residence or a place of business in Hong Kong; the cause of action arose within the territorial waters of Hong Kong; an action arising out of the same incident or series of incidents is proceedings in the Hong Kong court or has been heard and determined in the Hong Kong Court; or the defendant has submitted or agreed to submit to the jurisdiction of the Hong Kong Court. As for in rem claims, jurisdiction is founded by service on the ship, which is effected by affixing the warrant of arrest or a sealed writ on any mast or on the outside of any suitable part of the ship s superstructure (Order 75, rule 11 of the RHC). In theory, the in rem jurisdiction of Hong Kong courts extends to all ships within Hong Kong s territorial waters. In practice, though, the Bailiff of the Hong Kong High Court will only serve in rem proceedings on vessels that call into a Hong Kong port, including anchorages within port limits. As a matter of procedure, time is protected by the filing of a writ at the High Court. The High Court of Hong Kong has exclusive jurisdiction for admiralty claims. As between competing vessel interests involved in a collision, preliminary acts are then filed at court (Order 75, rule 18 RHC). Preliminary acts are designed to obtain statements of facts from the parties, and these statements are to be made blind when matters are still fresh in the parties minds. Statements of fact in a Preliminary Act amount to formal admissions and cannot generally be departed from without special leave of the court. EUROPEAN LAWYER REFERENCE SERIES 281

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