로테르담 규칙의 적용범위로서 계약자유의 원칙과 그 제한
A Study on the Principle of freedom of contract and Its Restrictions as a Scope of Application under the Rotterdam Rules
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There are also recognised in the Rotterdam Rules contracts to which the Rules apply but where the parties also enjoy a degree of freedom of contract. In other words, these are categories of contract where the parties are free to vary and even derogate from the mandatory nature of the Rules. Such categories are not a novel phenomenon in the tradition of international maritime transport conventions but a few and controversial addition has been introduced by the Rules, characterised as ‘volume contract’. It can be argued that FIO clauses would be contrary to article Ⅲ(2) of the Hague-Visby Rules and therefore is invalidated by article Ⅲ(8) of the same Rules. In United Kingdom who is leading player in the field of maritime law, the House of Lords in the Jordan Ⅱ now reaffirmed that the cargo interests and the carrier are free to reallocate the responsibility for these cargo handling operations, without being invalidated by article Ⅲ(8) of the Hague-Visby Rules. The controlling party is the party interested in the goods during the carriage. The chapeau of the first paragraph of Article 50 in the Rotterdam Rules makes it clear that the controlling party is the excusive person entitled to exercise a right of control. But, unless it is also the shipper, it is not a party to the contract of carriage pursuant to the provisions of the he Rotterdam Rules. On the other hand, the con- trolling party may, for all practical purposes, act as the counter-party of the carrier during the transport. Most of the Provisions of the Rotterdam Rules address substantive aspects of the relationship between cargo and carrier interests. But Chapter 14 relates only indirectly to that substantive risk allocation. They instead address a procedural question: If a substantive dispute arises under the Convention, what forum will resolve that dispute? Chapter 14 concerns the choice of court in a litigation context. In the end, the Rotterdam Rules has provisions to regulate the exclusive jurisdiction agreement. Further Article 67 recognizes it only in volume contract. Chapter 14 was probably the most controversial of the Conven- tion. Irreconcilable positions emerged during the debates, and it proved impossible to achieve consensus on any compromise solution. The broadest compromise that could be found was ultimately included in Chapter 14, but it became optional to permit those nations that could not accept the compromise to ratify the rest of the Rotterdam Rules. The requirements for an arbitration agreement in the Chapter 15 under the Rotterdam Rules are more demanding and complex than those under sections 5 and 6 of the Arbitration Act 1996. Those provisions make no distinction between volume and other contracts; contracts between the original parties and consignees or transferees of the contract of carriage of goods; liner transportation and non-liner transportation. Furthermore, Chapter 14 and 15 of the Rotterdam Rules introduce considerable further complexity into an already challenging area, without addressing some of the existing issues that trouble maritime litigants.
Abstract
There are also recognised in the Rotterdam Rules contracts to which the Rules apply but where the parties also enjoy a degree of freedom of contract. In other words, these are categories of contract where the parties are free to vary and even derogate from the mandatory nature of the Rules. Such categories are not a novel phenomenon in the tradition of international maritime transport conventions but a few and controversial addition has been introduced by the Rules, characterised as ‘volume contract’. It can be argued that FIO clauses would be contrary to article Ⅲ(2) of the Hague-Visby Rules and therefore is invalidated by article Ⅲ(8) of the same Rules. In United Kingdom who is leading player in the field of maritime law, the House of Lords in the Jordan Ⅱ now reaffirmed that the cargo interests and the carrier are free to reallocate the responsibility for these cargo handling operations, without being invalidated by article Ⅲ(8) of the Hague-Visby Rules. The controlling party is the party interested in the goods during the carriage. The chapeau of the first paragraph of Article 50 in the Rotterdam Rules makes it clear that the controlling party is the excusive person entitled to exercise a right of control. But, unless it is also the shipper, it is not a party to the contract of carriage pursuant to the provisions of the he Rotterdam Rules. On the other hand, the con- trolling party may, for all practical purposes, act as the counter-party of the carrier during the transport. Most of the Provisions of the Rotterdam Rules address substantive aspects of the relationship between cargo and carrier interests. But Chapter 14 relates only indirectly to that substantive risk allocation. They instead address a procedural question: If a substantive dispute arises under the Convention, what forum will resolve that dispute? Chapter 14 concerns the choice of court in a litigation context. In the end, the Rotterdam Rules has provisions to regulate the exclusive jurisdiction agreement. Further Article 67 recognizes it only in volume contract. Chapter 14 was probably the most controversial of the Conven- tion. Irreconcilable positions emerged during the debates, and it proved impossible to achieve consensus on any compromise solution. The broadest compromise that could be found was ultimately included in Chapter 14, but it became optional to permit those nations that could not accept the compromise to ratify the rest of the Rotterdam Rules. The requirements for an arbitration agreement in the Chapter 15 under the Rotterdam Rules are more demanding and complex than those under sections 5 and 6 of the Arbitration Act 1996. Those provisions make no distinction between volume and other contracts; contracts between the original parties and consignees or transferees of the contract of carriage of goods; liner transportation and non-liner transportation. Furthermore, Chapter 14 and 15 of the Rotterdam Rules introduce considerable further complexity into an already challenging area, without addressing some of the existing issues that trouble maritime litigants.
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