CHAPTER 3

INTERPRETATION AND CONSTRUCTION OF

THE RULES
©Prof. W. Tetley, Q.C.

I. Introduction

II. Styles of Drafting – Civil Law/Common Law

III. Rules of Interpretation and Construction

1) Civil law
a) Mazeaud’s rules of interpretation
b) Mignault’s rules of interpretation
2) Common law
3) Civil law vs. common law interpretation of international
conventions
4) Vienna Convention on the Law of Treaties 1969
5) Mixed jurisdictions

IV. Hague and Hague/Visby Rules – Codifying Statutes

V. Stare Decisis

1) Common law
2) Civil law
a) Continental civil law jurisdictions
b) Mixed jurisdictions
3) Stare decisis – the supreme courts
a) The Court of Justice of the European Communities
b) The European Court of Human Rights
c) The House of Lords
d) The Supreme Court of the United States
e) The Supreme Court of Canada
4) Intermediate appeal courts
a) The United Kingdom
b) The United States Circuit Courts of Appeals
c) Canada

VI. Privy Council – Jurisdiction and Authority

1) Jurisdiction
2) Abolition of the right to appeal by Commonwealth members
 2

a) On becoming republics
b) By specific legislation
3) Authority of the Privy Council
a) Never binding on itself
b) Before abolition
c) After abolition

VII. Particular Principles of Interpretation of the Rules

1) Actual wording - rather than previous law

2) International rather than domestic construction
3) The principle of standardization
4) Reference to the history of the Rules
5) Carrier/shipper compromise and balance
6) Strict construction of the exceptions in the Rules
7) Taking cognisance of new methods
8) The French text and other texts
9) References to foreign judgments
10) Precedence of a later statute
11) Precedence of the international convention

VIII. The Hague/Visby Rules

IX. The Hamburg Rules

X. Conclusion
 3

CHAPTER 3

INTERPRETATION AND CONSTRUCTION OF

THE RULES

I. Introduction

Before considering how the Hague Rules and the Hague/Visby Rules should be
interpreted, it is important to look at the differing principles of interpretation and
construction of both the civil law and the common law with a view to determining
whether the two sets of Rules were drafted in civil law or common law style or in some
intermediary form.

II. Styles of Drafting - Civil Law/Common Law

The basic tenet of the civil law style of drafting (le style français)1 is concision. The
aim of the style is to be concise,2 to present a principle of law in a single, general,
harmonious phrase that by its broad terms encompasses all particular details.3 A

1
See Louis-Philippe Pigeon, Rédaction et interprétation des lois, 2 Ed., Gouvernement du Québec,
Quebec, 1986 at p. 19. See also Philippe Malaurie & Laurent Aynès, Cours de droit civil. Introduction à
l’étude du droit, Éditions Cujas, Paris, 1991 at para. 516: “La loi devrait être facilement intelligible, c’est-
à-dire qu’elle devrait être simple, claire, concise et sans effets littéraires.” Note, however, that not all Civil
Codes follow the French model. The German Civil Code of 1896 (the Bürgerliches Gesetzbuch), in
particular, is far more detailed than the French Code and those modelled on it. See M.A. Glendon, M.W.
Gordon & C. Osakwe, Comparative Legal Traditions, West Publishing Co., St. Paul, Minn., 1994 at p. 54:
“In form and style, the French Civil Code stands in marked contrast to the German Civil Code which
appeared nearly a century later. The Code civil des français was meant to be read and understood by the
citizen. With its clean, fertile and intentionally concise provisions, its style resembles that of the United
States Constitution, more than it does the German Civil Code of 1896…. The draftsmen opted for the
flexibility of general rules, rather than for detailed provisions.”
2
Montesquieu, in his celebrated De L’Esprit des Lois, 1748 (Book XXIX, chap. xvi), gives as his first and
foremost admonishment on composing laws that: “The style ought to be concise.” (The Spirit of Laws, A
compendium of the First English Edition with an Introduction by David Wallace Carrithers, Berkeley,
1977, at p. 376). Portalis, one of the drafters of the Code Napoléon, declared: “L'office de la loi est de
fixer, par de grandes vues, les maximes générales du droit; d'établir des principes féconds en
conséquences, et non de descendre dans le détail des questions qui peuvent naître sur chaque matière.”
Portalis’ admirable speech is published in full in Sir O. Khan-Freund, C. Lévy and B. Rudden (eds.), A
Source-book on French Law, 3 Ed., Clarendon Press, Oxford, 1991, 233 at p. 235 [hereafter cited as
“Kahn-Freund, Lévy & Rudden, A Source-Book on French Law, 3 Ed., 1991”].
3
Professor F.H. Lawson, commenting on the style of the Code Napoléon, said that it was composed in
“the sort of plain style we admire so much in our Swift and Defoe, and which Hazlitt said was so difficult
to write.” (F.H. Lawson, An English Lawyer's Reflections on the Hundred and Fiftieth Anniversary of the
Code Civil. The Comparison: Selected Essays, vol. II, Amsterdam, 1977, at p. 48.) It is interesting to note
that Napoleon did not approve of the drafter's style of the Code that bears his name. He complained: “that
the vice of our modern legislations is that they do not speak to the imagination. Man can be governed only
by imagination; without it, man is a brute. It is a mistake to govern men like things; it is by speaking to
man's soul that he can be thrilled ...” (Thibaudeau, Mémoires sur le Consulat de 1799 à 1804 par un
 4

celebrated example is arts. 1382 and 1383 of the French Civil Code, which in two
sentences contains the whole law of personal delict (equivalent to personal tort in the
common law).4 Another example is the law of vicarious liability to be found at art. 1384
c.c. (France).5 In Québec, a prime example of civilian concision is art. 6 of the Civil Code
of 1994: “Every person is bound to exercise his civil rights in good faith.” Codification
permits the “règles de droit” (fundamental legal principles, rather than specific legal rules
for the particular case) to be enacted in broad terms, which may then be interpreted and
extended to new situations by enlightened judicial interpretation.6

The common law style of drafting (le style anglais),7 on the other hand, emphasizes
precision8 rather than concision.9 The aim of the style is to include every possible detail
in order to fully inform the citizen of the law and of his rights.10 The practice in common
law drafting is to list all the particulars, preceded by a catch-all phrase, which is followed
by a demurrer such as “notwithstanding the generality of the foregoing”. Art. 4(2)(a) to

Ancien Conseiller d’Etat, 419-424, translated by and cited in Alain Levasseur, “On the Structure of a
Civil Code” (1969-1970), 44 Tul. L. Rev. 693 at p. 698.)
4
Arts. 1382 and 1383 c.c. (France), identical to arts. 1382 and 1383 c.c. (Belgium). See also arts. 2315,
2316 c.c. (Louisiana); art. 2043 c.c. (Italy); art. 1902 c.c. (Spain).
5
Identical to art.1384 c.c. (Belgium) and similar to art. 2317 c.c. (Louisiana); arts. 2048 and 2049 c.c.
(Italy); and art. 1903 c.c. (Spain).
6
See Brice Dickson, in Introduction to French Law, Pitman Publishing, London, 1994 at pp. 10-11: “The
generally worded provisions of the Code civil and the consequent freedom given to judges to interpret and
apply those provisions have made possible the development of new rules and have without doubt been
responsible for the Code’s ability to come to terms with the social, technical and economic developments
since Napoleon’s day.” See also J. Ghestin & G. Goubeaux, Traité de Droit Civil. Introduction Générale, 4
Ed., L.G.D.J., Paris, 1994 at para. 147.
7
Pigeon, supra, at p. 5.
8
See generally G.C. Thornton, Legislative Drafting, 2 Ed., London, 1979, at p. 53 et seq.; Daniel Jacoby,
“La composition des lois” (1980), 40 Revue du Barreau 3 at p. 22 et seq. See also British and French
Statutory Drafting: The Proceedings of the Franco-British Conference of 7 and 8 April 1986, Sir William
Dale, ed., Institute for Advanced legal Studies, London, 1987, particularly the paper by Edward Caldwell,
U.K. Parliamentary Counsel, where he stated (at p. 56): “The typical Act of Parliament is long and detailed
and attempts to state Parliament’s intention with precision. It may leave some of the detail to be filled in by
regulations, orders or other subordinate legislation but is unlikely to leave much of the new law to be
developed by the courts. Acts which confine themselves to statements of general principle and leave the
detailed development of the law to the courts are rare.”
9
See British and French Statutory Drafting: The Proceedings of the Franco-British Conference of 7 and 8
April 1986, supra, where Lord Wilberforce, in his Opening Address (at p. 1), compared the English system
of “elaborate, detailed drafting, covering every individual case” with the “French [method] of elegant
generalities from which applications are deduced.” See also the Commentaires du ministre de la Justice on
the Civil Code of Québec 1994, vol. 1, Les Publications du Québec, Quebec, 1993 at p. vii: «Le Code civil
constitute un ensemble législatif structuré et hiérarchisé. Il ne dit pas tout; son rôle est d’établir des règles
qui pourront s’adapter à la diversité des situations humaines et sociales et d’intégrer les développements
scientifiques ou sociaux.» (translation: “The Civil Code constitutes a structured and systematic legislative
whole. It does not provide for everything; its role is to establish rules which may be adapted to the diversity
of human and social situations and integrate scientific and social developments.”)
10
Although, as pointed out by G.C. Thornton: “[i]t is unrealistic to believe that the laws should be drafted
in language and in a style which is familiar and instantly intelligible to the man in the street, [n]evertheless
the draftman must in each case endeavour to draft in such a way that the law is successfully communicated
to the persons who make up the three groups [i.e. 1) The members of the lawmaking authority; 2) The
members of society who are concerned with or affected by the law; 3) members of the judiciary].”
(Thornton, supra, at p. 45.)
 5

(q) of the Hague and Hague/Visby Rules is an example of common law drafting: a long
list from 4(2)(a) to (p), followed by the catch-all phrase (q), this time at the end.
Conversely, art. 4(1) of the Hague Rules and art. 5(l) of the Hamburg Rules are
approximations of the civil law style of drafting.

Another difference between the common law and the civil law lies in their
respective approaches to remedies and recourses. The common law deals with remedies
first: there must be a remedy11 to have a right, while the civil law is concerned first with
rights and all rights have virtually the same recourse. For example, in respect to
contracts, the civil law recourses for breach of contract are the rescision of the contract
or damages or both and, occasionally specific performance.12

III. Rules of Interpretation and Construction

1) Civil law

Many authorities have written on the interpretation of civil codes. All have
emphasized the concision of a civil code but few have written concisely on the matter.13
Mazeaud and Mignault are exceptions and have presented concise rules of interpretation.

a) Mazeaud's rules of interpretation

Mazeaud's rules of interpretation may be summarized as follows:14

i) When the text is clear, it should not be interpreted but rather applied purely and
simply, provided however that such application does not lead to an absurdity.

ii) When the text is obscure, the court must discover the intention of the legislator
by examining the legislation as a whole as well as the provisions more immediately
surrounding the obscure text.

iii) If such examination does not suffice, the court may refer to the preparatory
studies to discover the thinking of the legislator. These studies however are not
binding on the court.

11
“Remedies” is a subject taught as a full course in common law schools, while neither remedies nor
recourses is a civil law subject.
12
The different damages for delay (2½ times freight) under arts. 5(2) and 6(1)(b) of the Hamburg Rules is
an example of a common law distinction (i.e. different damages for different types of claims).
13
See J. Ghestin et G. Goubeaux, Traité de Droit Civil, Introduction Générale, 4 Ed., L.G.D.J., Paris, 1994,
paras. 144-171, and Ch. Perelman, Logique juridique, nouvelle rhétorique, Paris, 1979, paras. 31 to 36. See
also Jean Carbonnier, “Authorities in Civil Law: France” in Joseph Dainow, The Role of Judicial Decisions
and Doctrine in Civil Law and in Mixed Jurisdictions, Louisiana State University Press, Baton Rouge,
1974 at p. 112 et seq.
14
Mazeaud, Leçons de Droit Civil, 7 Ed., Paris, 1983, t. 1, vol. 1, at para. 110.
 6

iv) When the text does not directly provide a solution, the court must rely on the
text as a starting point from which to discover the law. In other words, the text
remains a framework into which new elements may be inserted.

v) At times the court may base its decision on general principles of law (e.g.
unjust enrichment) gleaned from the evolving jurisprudence. Such reliance must
be made with circumspection and care. The court must not forsake the text in order
to make equity its sole guide.

vi) The court may also turn to the rules of logic in shaping its reasoning. For
example, exceptions are to be strictly construed and specific language supersedes
general language.

b) Mignault's rules of interpretation

P.B. Mignault's rules of interpretation may be summarized as follows:15

i) First, one refers to the text of the code itself.

ii) Only if there is ambiguity in the text of the code may one refer to the official
codifiers’ report (which is usually a statement by the drafters of the Code as to the
sources of each article.)

iii) If there still remains any doubt, one then refers to la doctrine, that is, the
commentaries of recognized experts on the law.16

iv) Only if all else fails may one consider the reported decisions on the civil law.

v) Finally, one may refer to the common law (le droit anglais), if the text in
question has its origins in the common law.17 (Mignault's rules are especially useful
in a mixed jurisdiction.)
15
P.B. Mignault, “Le Code Civil de La Province de Québec et son Interprétation” (1935-36), 1 U. of
Toronto L.J. 104 at p. 124. Mignault summarized the rules of interpretation of F.P. Walton, The Scope and
Interpretation of the Civil Code of Lower Canada, Wilson & Lafleur Ltée., Montreal, 1907. See reprint of
Walton with an excellent introduction by Maurice Tancelin, Butterworths, Toronto, 1980. See also Pierre-
André Côté, “Les Règles d’interprétation des lois: des guides et des arguments” (1978) 13 Revue
juridique Thémis 275.
16
That la doctrine ranks ahead of reported decisions of even the highest courts can be seen in the order of
priority given in continental legal journals. In Droit Maritime Français (DMF), the commentaries or
articles on the law by experts are printed first each month, then the judgments of the Cour de Cassation,
followed by the judgments of the Appeal Courts and finally the decisions in first instance. Writers on
foreign law are put at the end.
17
See however, Lord Sumner in Quebec Railway, Light, Heat and Power Company v. Vandry [1920] A.C.
662 at pp. 671-672 (P.C.): “Thus, however stimulating and suggestive the reasoning of French Courts or
French jurists upon kindred subjects and not dissimilar texts undoubtedly is, ‘recent French decisions,
though entitled to the highest respect ... are not of binding authority in Quebec’ [citation omitted] still less
can they prevail to alter or control what is and always must be remembered to be the language of a
Legislature established within the British Empire.” The foregoing remarks are quite inaccurate. The
Québec Civil Code (the Civil Code of Lower Canada) was drafted in its entirety by three Québec Civil
 7

In general, it may be said that the interpretation of legislation in civil law

jurisdictions is “liberal”, rather than restrictive, focusing on the purpose of the provisions
as determined by the judge, and permitting the use of various external aids (e.g. the
preparatory works, surrounding circumstances, and analogies).18

2) Common law

Perhaps the classic, or most famous statement, of common law statutory

interpretation was by Sir Courtney Ilbert:19

“Regard should be had to the general rules for the interpretation of statutes, as
laid down in the ordinary textbooks. Among the most important of these are –

1. The rule that an Act must be read as a whole. Therefore the language of one
section may affect the construction of another.

2. The rule that an Act may be interpreted by reference to other Acts dealing
with the same or a similar subject matter. Hence the language of those Acts
must be studied. The meaning attached to a particular expression in one Act,
either by definition or by judicial decision, may be attached to it in another.
And variation of language may be construed as indicating change of
intention.

3. The general rule that special provisions will control general provisions.

4. The similar rule that where particular words are followed by general words
(horse, cow, or other animal), the generality of the latter will be limited by
reference to the former (‘Ejusdem generis’ rule).

law jurists in the civil law style relying for the most part on the Custom of Paris and the Code Napoléon.
The Québec Civil Code was proclaimed law on May 26, 1866 by a proclamation of the government of the
United Province of Canada (Ontario and Quebec) in virtue of a law of Legislative Council and the
Legislative Assembly of the United Province of Canada. (L.C. 1865, c. 41, September 18, 1865). In
particular, Lord Sumner ignored the enlightened British practice of leaving to its colonies their original
civil law (in this case French civil law) while at the same time imposing the British administrative system
and British criminal law.
18
See A. Kiantou-Pampouki, “The Interpretation of International Maritime Conventions in Civil Law and
in Common Law”, being the General Report presented to the XIII Conference of the International
Academy of Comparative Law, Montreal, 1990 at p. 6: “He [the civilian judge] is free to choose the
methods or the ‘instruments’ which he expects to assist him in providing a convincing solution, even
outside the legal text, such as the preparatory works, the circumstances under which the law was enacted,
as well as subsequent events regarding the law. He may correct the legal text, by restricting or enlarging its
field of operation. He may also proceed to an analogy of law or form a new rule so that one way or another
he may meet with new situations which are not covered by the text.”
19
Sir Courtney Ilbert, Legislative Methods and Forms, H. Frowde, London, 1901, at pp. 250-251. See also
Maxwell on the Interpretation of Statutes, 12 Ed., Sweet & Maxwell, London, 1969; Craies on Statute
Law, 7 Ed., Sweet & Maxwell, London, 1971.
 8

5. The general rule, subject to important exceptions, that a guilty mind is an

essential element in a breach of criminal or penal law. It should, therefore,
be considered whether the words ‘wilfully’ or ‘knowingly’ should be
inserted, and whether, if not inserted, they would be implied, unless
expressly negatived.

6. The presumption that the legislature does not intend any alteration in the
rules or principles of the common law beyond what it expressly declares.

7. The presumption against an intention to oust or limit the jurisdiction of the

superior courts.

8. The presumption that an Act of Parliament will not operate beyond the
United Kingdom.

9. The presumption against any intention to contravene a rule of international

law.

10. The rule that the Crown is not bound by an enactment unless specially
named.

11. The presumption against the retrospective operation of a statute, subject to

an exception as to enactments, which affect only the practice and procedure
of the courts.

12. The rule that a power conferred on a public authority may be construed as a
duty imposed on that authority (‘may’ = ‘shall’).”

In general, common law statutory construction, reflecting the historic role of

statutes in England as correctives to gaps or defects of the common law, is restrictive. It
focuses on the usual meaning of the words of the enactment, with a view to ascertaining
and giving effect to the intention of the lawgiver as expressed in the text, and admitting
few, if any, external aids to interpretation.20

3) Civil law vs common law interpretation of international conventions

It is not surprising that the difference between the more “liberal” civilian and the
more “restrictive” common law methods of statutory interpretation is also reflected in

20
See A. Kiantou-Pampouki, “The Interpretation of International Maritime Conventions in Civil Law and
in Common Law”, supra, at p. 7: “… interpretation in Common Law is effected in view of the intent of the
Legislator rather than the purpose of the law and is not as liberal as it is in Civil Law. The words used in
statutes are taken in their ordinary grammatical meaning. In case of ambiguities the legislator’s intent is
looked for in the text of the statute itself or in its context…. There is no question of applying by analogy the
solution provided by a statute for similar cases, because there is no such concept in english law as the
punishable denial of justice. In any case, judges may turn to the Common Law to find solutions for the
problems they are facing.”
 9

their respective methods of construing international conventions.21 One of the clearest

statements on this point was made by the English Court of Appeal in Canada Trust Co.
and Others v. Stolzenberg and Others (No. 2),22 a case involving the interpretation of the
Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters 1988.23 Citing the authors Briggs and Rees24 on that Convention and
the similar Brussels Convention 1968,25 Waller, L.J. observed:26

“The Conventions are European texts, designed and drafted by civil

lawyers trained in the continental legal tradition; and they are interpreted
by judges who are, by a large majority, civilian lawyers. The texts have to
be understood, and interpreted, according to the European style, at least if
they are to be understood in a way which will conform, to the views of the
[European] Court of Justice. The English custom of interpreting, more or
less literally, the precise relevant words, following the prior decisions of
earlier courts, is not the European way. Instead, the Conventions are
interpreted ‘teleologically’; that is to say, with a view predominantly given
to the overall purposes of the Convention as a whole, as distinct from
simply seeking to ascertain the natural meaning of a single provision in
isolation from the rest of the text. For this reason, attention to the general
principles underpinning the Convention, as the Court of Justice has
declared them and as set out here, is the proper first step in the
interpretation of any individual provision: they must be taken as read in all
cases. A sound teleological argument may well defeat a good literal one.”

This pronouncement hearkens back to a similar comparison of English and

Continental styles of interpretation, as well as drafting, of both statutes and conventions,
made by Lord Denning, M.R. in Bulmer v. Bollinger,27 commenting on the European

21
For an interesting comparison of the interpretation of international maritime conventions in civilian and
common law countries, see the proceedings of the XIII Conference of the International Academy of
Comparative Law, Montreal, Canada, 1990, where reports may be found on the interpretation of such
conventions by courts in Australia, Belgium, Canada, Finland, France, Germany, Greece, Japan, the
Netherlands, Poland, Sweden, the United Kingdom, the United States and Venezuela.
22
[1998] 1 All E.R. 318, [1998] 1 W.L.R. 547 (C.A.).
23
Adopted at Lugano, September 16, 1988 (O.J.E.C. 1988 L 391/9), the Lugano Convention 1988
establishes certain rules governing the jurisdiction of courts and the enforcement of judgments in civil and
commercial matters as between States of the European Union and those belonging to the European Free
Trade Association. The Lugano Convention was given the force of law in the United Kingdom by the Civil
Jurisdiction and Judgments Act 1991, U.K. 1991, c. 12.
24
A. Briggs & P. Rees, Civil Jurisdiction and Judgments, 2 Ed., Lloyd’s of London Press, London, 1997 at
p. 16.
25
The Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters,
adopted at Brussels, September 27, 1968, as subsequently amended by various Accession Conventions
admitting additional States to membership in the European Union (see O.J.E.C. 1982 L 285/1). The
Brussels Convention 1968 establishes uniform rules on jurisdiction and the enforcement of judgments in
civil and commercial matters for courts in countries of the European Union. It was given force of law in
the U.K. by the Civil Jurisdiction and Judgments Act 1982, U.K. 1982, c. 27.
26
[1998] 1 All E.R. 318 at p. 332, [1998] 1 W.L.R. 547 at p. 562.
27
[1974] 2 All E.R. 1226 at p. 1237 (C.A):
 10

Communities Act 1972,28 whereby the U.K. gave effect to the Treaty of Rome 1957, thus
becoming a member of the European Economic Community.29

4) Vienna Convention on the Law of Treaties 1969

One of the most important international conventions ever adopted is the Vienna
Convention on the Law of Treaties, 1969.30 It lays down basic rules governing the
adoption, ratification, interpretation, implementation and denunciation of treaties and has
itself been ratified or acceded to by most of the world’s nations,31 including those of both
civil law and common law traditions. Its rules may therefore be considered as truly
transnational. These rules codify customary international law in respect of treaty
interpretation and therefore apply to the construction of the Hague Rules 1924 and the

“What a task is thus set before us! The treaty is quite unlike any of the enactments to
which we have become accustomed. The draftsmen of our statutes have striven to express
themselves with the utmost exactness. They have tried to foresee all possible
circumstances that may arise and to provide for them. They have sacrificed style and
simplicity. They have foregone brevity. They have become long and involved. In
consequence, the judges have followed suit. They interpret a statute as applying only to
the circumstances covered by the very words. They give them a literal interpretation. If
the words of the statute do not cover a new situation -which was not foreseen - the judges
hold that they have no power to fill the gap. To do so would be a ‘naked usurpation of the
legislative function’: see Magor and St. Mellons Rural District Council v. Newport
Corporation, [[1951] 2 All E.R. 839 at p. 841, [1952] A.C. 189 at p. 191, per Lord
Simmonds]. How different is this treaty. It lays down general principles. It expresses its
aims and purposes. All in sentences of moderate length and commendable style. But it
lacks precision. It uses words and phrases without defining what they mean. An English
lawyer would look for an interpretation clause, but he would look in vain. There is none.
All the way through the treaty there are gaps and lacunae. These have to be filled in by
the judges, or by regulations or directives. It is the European way. That appears from the
decision of the Hamburg court in Re Tax on Imported Lemons [[1968] C.M.L.R. 1].”
28
U.K. 1972, c. 68.
29
The Treaty Establishing the European Economic Community, adopted at Rome, March 25, 1957, and
renamed the “Treaty Establishing the European Community” by the Treaty on European Union (the Treaty
of Maastricht), adopted at Maastricht, February 7, 1992.
30
U.N. Doc. A/Conf. 39/27, adopted at Vienna, May 22, 1969 by a vote of 79-1 (France against), with 19
abstentions, and opened for signature on May 23, 1969. See the official text at 1155 U.N.T.S. 331, 8 I.L.M.
679. The Convention entered into force on January 27, 1980.
31
The Vienna Convention is in force in some 99 States. The United Kingdom signed it on April 20, 1970
and acceded to it on June 25, 1971. But it was published officially only in 1980. See U.K.T.S. 58 (1980),
Cmnd. 7964. The United States signed the Convention on April 24, 1970 but has never ratified it, although
it has been cited by American courts as “… a compendium of international norms applicable to various
questions of treaty law”. See Joseph D. Becker, The American Law of Nations. Public International Law in
American Courts, Juris Publishing Inc., New York, 2001 at p. 34, citing Weinberger v. Rossi 456 U.S. 25 at
p. 29, note 5 (1982) and Sale v. Haitian Centers Council 509 U.S. 155 at p. 191 (1993) (Blackmun, J.
dissenting). See also the Restatement (Third) of Foreign Relations Law, adopted by the American Law
Institute at Washington, D.C., May 14, 1986, West Publishing Co., St. Paul, Minn., 1987, sect. 325,
comment (a): “But it [the Vienna Convention] represents generally accepted principles and the United
States has also appeared willing to accept them despite differences of nuance and emphasis.” Canada
ratified the Convention on October 14, 1970. On the Vienna Convention 1969 generally, see W. Tetley,
“Canadian Interpretation and Construction of Maritime Conventions” (1991) 22 R.G.D. 109-128; and on-
line (updated August 8, 2001) at http://tetley.law.mcgill.ca/maritime/interpretation.htm.
 11

Hague/Visby Rules and the Hamburg Rules, although the Vienna Convention came into
force only in 1980.32

The Vienna Convention on the Law of Treaties deals with “Interpretation of

Treaties” in its Part III, section 3, which consists of only three articles: art. 31 on the
“General rule of interpretation”; art. 32 on “Supplementary means of interpretation”; and
art. 33 on “Interpretation of treaties authenticated in two or more languages”.

Art. 31, the “General rule of interpretation”, provides:

“1. A treaty shall be interpreted in good faith in accordance with the

ordinary meaning to be given to the terms of the treaty in their context and
in the light of its object and purpose.33

2. The context for the purpose of the interpretation of a treaty shall

comprise, in addition to the text, including its preamble and annexes:

(a) any agreement relating to the treaty which was made between
all the parties in connection with the conclusion of the treaty;

(b) any instrument which was made by one or more parties in

connection with the conclusion of the treaty and accepted by the other
parties as an instrument related to the treaty.

3. There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the

interpretation of the treaty or the application of its provisions;

(b) any subsequent practice in the application of the treaty which

establishes the agreement of the parties regarding its interpretation;34

(c) any relevant rules of international law applicable in the

relations between the parties.

32
See Great China Metal Industries Co. Ltd. v. Malaysian International Shipping Corp. Berhad (The
Bunga Seroja) (1998) 158 A.L.R. 1 at p. 19, note 97, [1999] 1 Lloyd’s Rep. 512 at pp. 523 and 553, note
97, 1999 AMC 429 at p. 450, note 97 (High C. of Aust.). See also El Greco (Australia) Pty. Ltd. v.
Mediterranean Shipping Co. [2004] 2 Lloyd's Rep. 537 at p. 559, 2004 AMC 2886 at p. 2923 (Fed. C.
Aust, Full Court): "The need for a broad or liberal construction is reinforced by the matters which can be
taken into account under Articles 31 and 32 of the Vienna Convention on the Law of Treaties (the "Vienna
Convention")…. The Vienna Convention is an authoritative statement of customary international law."
33
See also the Restatement (Third) of Foreign Relations Law, 1987 at sect. 325(1): “(1) An international
agreement is to be interpreted in good faith in accordance with the ordinary meaning to be given to its
terms in their context and in the light of its object and purpose.”
34
See also the Restatement (Third) of the Foreign Relations Law of the United States, 1987 at sect. 325(2):
“Any subsequent agreement between the parties regarding the interpretation of the [international]
agreement, and subsequent practice between the parties in the application of the agreement, are to be taken
into account in its interpretation.”
 12

4. A special meaning shall be given to a term if it is established that the

parties so intended.”

Art. 32 (“Supplementary means of interpretation”) provides:

“Recourse may be had to supplementary means of interpretation, including

the preparatory work of the treaty and the circumstances of its conclusion,
in order to confirm the meaning resulting from the application of article
31, or to determine the meaning when the interpretation according to
article 31:

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd or unreasonable.”

Art. 33 on “Interpretation of treaties authenticated in two or more languages”

provides:35

“1. When a treaty has been authenticated in two or more languages, the
text is equally authoritative in each language, unless the treaty provides or
the parties agree that, in case of divergence, a particular text shall prevail.

2. A version of the treaty in a language other than one of those in which

the text was authenticated shall be considered an authentic text only if the
treaty so provides or the parties so agree.

3. The terms of the treaty are presumed to have the same meaning in each
authentic text.

4. Except where a particular text prevails in accordance with paragraph 1,

when a comparison of the authentic texts discloses a difference of
meaning which the application of articles 31and 32 does not remove, the
meaning which best reconciles the texts, having regard to the object and
purpose of the treaty, shall be adopted.”

4) Mixed Jurisdictions

Mixed jurisdictions are “legal systems in which the Romano-Germanic tradition

has become suffused to some degree by Anglo-American law.”36 Examples are Scotland,
35
See generally Peter Germer, “Interpretation of Plurilingual Treaties: A Study of Article 33 of the Vienna
Convention on the Law of Treaties” (1970) 11 Harv. Int’l L.J. 400.
36
F.P. Walton, The Scope and Interpretation of the Civil Code, Toronto, 1980, with an introduction by
Maurice Tancelin, at p. 1. The term “mixed jurisdictions” was apparently first coined by Professor T.B.
Smith of Edinburgh. See T.B. Smith, “The Preservation of the Civilian Tradition in Mixed Jurisdictions”,
to be found in A.N. Yiannopoulos, ed., Civil Law and the Modern World, Louisiana State University
Press, Baton Rouge, Louisiana, 1965 at pp. 4 and 25. On mixed jurisdictions generally, see V.V. Palmer,
 13

Louisiana, Québec and the Republic of South Africa. In these jurisdictions, there are
often codes which follow the civil law tradition of interpretation, while there are also
statutes which are construed in the common law manner.37

IV. Hague and Hague/Visby Rules - Codifying Statutes

Neither the Hague38 nor the Hague/Visby Rules39 is a code in the civil law
drafting style. Rather each is a hybrid civil law/common law (mostly common law) style
statute. Nor do the Hague and Hague/Visby Rules codify all existing law. Instead they are
a compromise invoking some new law in order to satisfy the varying interests of carriers
and shippers at the time of their adoption. As such they are what may be called
“codifying statutes.” The same is true of the Hamburg Rules40 and of the Multimodal
Convention.41 These Rules codify much of the law of the past, but also add new law for
the future.

A very useful statement on such codifying statutes was made by Lord Herschell
in the Bank of England v. Vagliano Brothers,42 when he commented on the Bills of
Exchange Act43 and its interpretation:44

“My Lords, with sincere respect for the learned Judges who have taken
this view, I cannot bring myself to think that this is the proper way to deal
with such a statute as the Bills of Exchange Act, which was intended to be
a code of the law relating to negotiable instruments. I think the proper
course is in the first instance to examine the language of the statute and to
ask what is its natural meaning, uninfluenced by any considerations
derived from the previous state of the law, and not to start with inquiring
how the law previously stood, and then, assuming that it was probably
intended to leave it unaltered, to see if the words of the enactment will
bear an interpretation in conformity with this view.

... One further remark I have to make before I proceed to consider the
language of the statute. The Bills of Exchange Act was certainly not

ed., Mixed Jurisdictions Worldwide: The Third Legal Family, Cambridge University Press, 2001; and W.
Tetley, “Mixed Jurisdictions: Common Law vs. Civil Law (Codified and Uncodified) (1999-3) Unif. L.
Rev. (N.S.) 591-619 (Part I) and (1999-4) Unif. L. Rev.877-907 (Part II); reprinted in (2000) 60 La. L.
Rev. 677-738, and at http://tetley.law.mcgill.ca/comparative/mixedjur.pdf.
37
On the duality of methods of interpretation in Québec and the autonomy of the civil law see P.-A. Côté,
The Interpretation of Legislation in Canada, 3 Ed., Carswell, Toronto, 2000 at pp. 26-33; Walton, op. cit.,
especially the introduction of M. Tancelin; P.B. Mignault, “Le Code Civil de la Province du Québec: et
son Interprétation” (1935-36) 1 U. of Toronto L.J. 104.
38
Signed at Brussels, August 25, 1924 and in force June 2, 1931.
39
Protocol to the Hague Rules, signed at Brussels, February 23, 1968 and in force June 23, 1977.
40
Adopted at Hamburg, March 30, 1978 and in force November 1, 1992.
41
Adopted at Geneva, May 24, 1980, not in force.
42
[1891] A.C. 107.
43
U.K., 45 & 46 Vict., c. 61 (1882).
44
[1891] A.C. 107 at pp. 144-45.
 14

intended to be merely a code of the existing law. It is not open to question

that it was intended to alter, and did alter it in certain respects. And I do
not think that it is to be presumed that any particular provision was
intended to be a statement of the existing law, rather than a substituted
enactment.”

The importance, therefore, of identifying the Hague and Hague/Visby Rules as

codifying statutes lies in the manner in which they should be treated by the courts.
When they are being interpreted, their actual terms must first be considered before
resorting to assistance from the law as it existed before their adoption.

V. Stare Decisis

1) Common law

Stare decisis is the principle by which an inferior court abides by or adheres to

decisions of superior courts within the same jurisdiction on legal principles forming
part of the ratio decidendi of the case. The purpose of stare decisis is to give
uniformity, continuity and predictability to the law.45

The decisions of one court, however, are not absolutely binding either on courts
of co-ordinate authority or on that court itself.46 It can be said, nevertheless, that there is
“a rule of etiquette or conventional decorum”47 that courts of co-ordinate authority will
defer to the opinions of one another for the sake of certainty, stability, and propriety in
the law.48 The classic statement regarding stare decisis was made by Brett M.R. in The
Vera Cruz (No. 2):49

“It was the custom for each of the Courts in Westminster Hall to hold
itself bound by a previous decision of itself or of a Court of co-ordinate
jurisdiction. But there is no statute or common law rule by which one
Court is bound to abide by the decision of another of equal rank, it does so
simply from what may be called the comity among judges. In the same

45
For an overview of stare decisis and the extent to which the rule is followed in the different English
courts, see chaps. 3 and 4 of Sir Rupert Cross, Precedent in English Law, 4 Ed., Clarendon Press, Oxford,
1991; Terence Ingman, The English Legal Process, 9 Ed., Oxford University Press, Oxford, 2002 at chap.
9.
46
Sir Frederick Pollock, First Book of Jurisprudence, 6 Ed., MacMillan, London, 1929 at p. 321, cited by
Hogg J. in R. ex rel. McWilliam v. Morris (1942) 51 O.W.N. 447 at pp. 448-9 (Ont. High Ct.).
47
Marconi Wireless Telegraph v. Canadian Car & Foundry Co. (1919) 44 D.L.R. 378 at p. 379, (1919) 18
Ex. C.R. 241 at p. 244.
48
See J. David Murphy and Robert Rueter, Stare Decisis in Commonwealth Appellate Courts,
Butterworths, Toronto, 1981, at p. 2; see also George F. Curtis, “Stare Decisis at Common Law in
Canada” (1978) 12 U. B. C. Law Rev. 1 at p. 8.
49
(1884) 9 P.D. 96 at p. 98 (C.A.); see also statements by Brown J. in Mast, Foos & Co. v. Stover Mfg. Co.
177 U.S. 485 at p. 488 (1900) and by the Earl of Halsbury in London Tramways Co. Ltd. v. London County
Council [1898] A.C. 375 (H.L.).
 15

way there is no common law or statutory rule to oblige a Court to bow to

its own decisions, it does so again on the grounds of judicial comity.”

Only where there is a demonstrably strong reason for doing so will the decision of
a trial judge not be followed. What constitutes a strong reason for not following a prior
decision by a judge of co-ordinate authority was discussed by McRuer C.J.H.C., in Reg.
v. Northern Electric Co. Ltd.:50

“strong reason ... does not mean a strong argumentative reason appealing
to the particular Judge, but something that may indicate that the prior
decision was given without consideration of a statute or some authority
that ought to have been followed. I do not think strong reason to the
contrary is to be construed according to the flexibility of the mind of the
particular judge.”

2) Civil law

a) Continental civil law jurisdictions

Stare decisis is presumably not observed in continental civil law jurisdictions.

Nevertheless, in France, for example, even though the judge does not regard himself as
absolutely bound by the decision of any court in a single previous instance, he
nonetheless endeavours to ascertain the trend of recent decisions on a particular point. It
therefore can be said that: “The practice of the courts does not become a source of the
law until it is definitely fixed by repetition of precedents which are in agreement on a
single point.”51 It should be noted, however, that the decisions of trial, appeal and
supreme courts are published and referred to in la doctrine.52 The supreme court (Cour de

50
[1955] 3 D.L.R. 449 at p. 466 (Ont. High Ct.).
51
E. Lambert and M.J. Wasserman, “The Case Method in Canada and the Possibilities of its Adaptation to
the Civil Law” (1929-30) 39 Yale L.J. 1 at p. 15, quoted in Cross, supra, at p. 12. See also D. Pollard,
Sourcebook on French Law, Cavendish Publishing Limited, London, 1997 at p. xxiv [hereafter cited as
“D. Pollard, Sourcebook on French law, 1997”]: “If the Cour de Cassation continues to repeat its formula
[often the first sentence of the decision, summarizing the principle of law concerned], and this is then
repeated and applied by the Cours d’appel and the lower courts, a jurisprudence constante becomes in
effect something akin to a precedent as understood by common lawyers.” See also Kahn-Freund, Lévy &
Rudden, A Source-Book on French Law, 3 Ed., 1991 at pp. 242-244, citing J. Carbonnier, Droit civil, vol.
1, 1988 at para. 144.
52
This raises the interesting question of the de jure authority of precedents in French law as opposed to
their de facto persuasiveness. The following comment by P. Esmein illustrates the intrinsic ambiguity that
surrounds the notion of judicial precedent in France: “La doctrine anglaise de 1’autorité des précédents
dispense les Anglais de se livrer à la discussion, jamais close chez nous, de savoir si la jurisprudence
constitue une source du droit. Ce débat est sans issue, car il faut répondre non et oui, suivant qu’on se
place dans le champ des idées pures ou qu’on considère la réalité des faits. Sur le plan des idées, l’art. 5.
C. civ., en interdisant aux juges de se prononcer par voie de disposition générale et réglementaire sur les
causes qui leur sont soumises, exclut qu’ils soient obligés de statuer comme eux-mêmes, ou d'autres juges,
même supérieurs, ont statué antérieurement ... Mais lorsque quelqu’un, pour la gestion de ses propres
intérêts, ou comme conseiller d'autrui, veut savoir comment un problème de droit sera résolu, il recherche
dans les décisions de justice comment il l’a été antérieurement. Il n’est pas d’autre façon de prévoir ce qui
sera jugé.” P. Esmein, “La jurisprudence et la loi” (1952) 50 Rev. trim. dr. civ. 17 at p. 19.
 16

Cassation) was instituted in France because of the fear that local judges would not always
promote the uniformity sought for in legislation. The role of the supreme court is to
“watch over the preservation of the law and to recall the courts to its observance by
quashing judgments rendered contrary to its prescriptions.”53 One decision, however,
never relies on or cites another.54

The purpose of a judgment in a civil law jurisdiction is to settle a particular

dispute, and the decision is not intended as a guide to settle future disputes.55 In France
this results in a very large Supreme Court, in that the Cour de Cassation has six divisions
for a total of 85 judges.56 There exists as well a Conseil d’État57 and a Conseil
Constitutionnel.58 In comparison, the United States has a Supreme Court of nine justices,
as does Canada, while there are approximately a dozen active Law Lords in the United
Kingdom at any one time. Civil law decisions in France are brief – usually only three or
four printed pages – in a style that is quite original. The opinions are written in a single
sentence and rarely refer to the facts.59 A French Supreme Court decision will usually
53
Ernest Faye, La Cour de Cassation, Paris, 1970 (reprint of the 1903 Paris edition), at p. 1. See also D.
Pollard, Sourcebook on French Law, 1997 at p. xviii and Kahn-Freund, Lévy & Rudden, A Source-Book on
French Law, 3 Ed., 1991 at p. 260.
54
Art. 5 of the Civil Code (France) expressly prohibits any judicial decision to act as controlling in a future
litigation (arrêts de règlement). No such similar article appears in the Québec Civil Code of 1866 or the
Louisiana Civil Code of 1985. Art. 5, the equivalent article in the Belgian Civil Code, was abolished on
October 10, 1967. See Planiol, Traité Elémentaire de Droit Civil, 5 Ed., Paris, 1950, para. 128. J. Ghestin et
G. Goubeaux, Traité de Droit Civil, Introduction Générale, 4 Ed., Paris, 1994, para. 478.
55
Nevertheless, civil law courts will on occasion direct new trends in the law or even make new law. For
example, the Cour de Cassation of France in the Arrêt Desmares, Cour de Cassation July 21, 1982, Bull.
1982, II, No. 111, at p. 81, D. 1982, 449, with note by Christian Larroumet, broke completely with “the
doctrine” and the clear meaning of art. 1384(l) c.c. to deny proportionate fault in a car/ pedestrian accident.
The driver and his insurer were obliged to compensate the victim fully. See also J.Ghestin & G. Goubeaux,
Traité de Droit Civil. Introduction Générale, 4 Ed., Paris, 1994 at para. 480, concerning the attitude of
some French courts to “abusive clauses” in consumer contracts.
56
As of 1996, the Cour de Cassation had 85 full judges, as well as 43 assistant judges (“conseillers
référendaires”) and 18 newly qualified judges acting as administrative assistants (“auditeurs”). See C.
Elliott & C. Vernon, French Legal System, Longman, Pearson Education Limited, Harlow, England, 2000
at p. 68.
57
The primary functions of the Conseil d’État are: (1) to review and comment on legislative proposals (les
projets de lois, as well as certain decrees, (2) to act as court of instance in certain areas of administrative
law, and (3) to act as the supreme court for decisions rendered by administrative courts and administrative
courts of appeal. The Conseil d’État is now governed by the Code de justice administrative, arts. L-111-1 to
L.137-1 and R.112-1 to R.135-11, which were enacted by Ordonnance no. 2000-387 (Partie législative) of
May 4, 2000 and Decrees nos. 2000-388 and 2000-389 of May 4, 2000 (Partie réglementaire) and which
together replace the former Ordonnance no. 45-1708 of July 31, 1945 and the two decrees of July 30, 1963
(Decrees nos. 63-766 and 63-767) as amended. See Yves Gaudemet, Traité de droit administratif, 16 Ed.,
tome 1, L.G.D.J., Paris, 2001 at paras. 735-753; Jean Gicquel, Droit constitutionnel et institutions
politques, 18 Ed., Montchrestine, Paris, 2002 at pp. 606-607.
58
The role of the Conseil Constitutionnel is essentially to act as protector of individual liberties and to
regulate the activities of government (les pouvoirs publics). It also supervises elections and judges
disputes related to them. See Title VII (arts. 56-63) of the French Constitution of October 4, 1958 and
Ordonnance no. 58-1067 of November 7, 1958. See also C. Elliott & C. Vernon, French Legal System,
Longman, Pearson Education Limited, Harlow, England, 2000 at pp. 78-82; Jean Gicquel, Droit
constitutionnel et institutions politiques, 18 Ed., Montchrestien, Paris, 2002, at pp. 715-730.
59
For a sympathetic explanation of the French manner of drafting judgments see Pierre Mimin, Le Style des
Jugements, 4 Ed., Librairies techniques, Paris, 1978, at pp. 185 and 187. See also A. Touffait and A. Tunc,
 17

send the case back to the Appeal Court with an order to rectify its decision along certain
lines, and the appeal courts do the same thing to the trial court decisions when they
overturn them. Most reported decisions are followed by a brief commentary on the
decision by a noted authority or doctor of law. These commentaries, which outline the
facts and the law, are far more valuable (except to the parties) than the judgment, and it is
these commentaries that form part of la doctrine.60

b) Mixed jurisdictions

Quebec and Louisiana are mixed jurisdictions, having civil law codes but common
law style statutes, legal administrations and court systems. The result is that these mixed
jurisdictions have civil law codes, which are drafted and interpreted in the civil law
tradition, while the decisions of the courts are written in the common law style and are
acknowledged as binding precedent. Stare decisis is as strong in a mixed jurisdiction as in
a common law jurisdiction.61

3) Stare decisis - the supreme courts

The highest court of a common law jurisdiction is usually bound by its own
decisions. Most supreme courts, nevertheless, have held that this does not apply in every
case.

a) The Court of Justice of the European Communities

The decision and opinions of the Court of Justice of the European Communities
(the “European Court of Justice”) interpreting European Union treaties and other
Community legislation are binding on United Kingdom courts, including the House of
Lords, as they are on all the highest courts of member-States of the E.U.62 Also binding
on those national courts are the preliminary rulings rendered by the European Court of
Justice63 on questions of interpretation of the E.U. treaties, the validity and interpretation
of acts of the institutions of the E.U. and the European Central Bank, and the

“Pour une motivation plus explicite des décisions de justice, notamment de celles de la Cour de Cassation”
(1974), 72 Rev. Trim. dr. civ. 487. See also Ch. Perelman, Logique juridique, nouvelle rhétorique, Paris,
1979, para. 83.
60
A French author of the turn of the century, E. Meynial assigns to the elaborate case annotation – perhaps
the most characteristic and original element of French legal writing – a major historic role in bridging the
gap between academic theory (l’École) and judicial and advocational practice (le Palais). Meynial, “Les
Recueils d’arrêts et les Arrêtistes”, in Livre du centenaire du Code civil, t. 1, Paris, 1979 (reprint of the
1904 Paris edition), at pp. 173 et seq. See generally Kahn-Freund, Lévy and Rudden, A Source-book on
French Law, 3 Ed., 1991 at pp. 255-258. See also D. Pollard, Sourcebook on French Law, 1997 at p. xxv.
61
See J.-L. Baudouin, “The Impact of the Common Law on the Civilian Systems of Louisiana and
Quebec”, in J. Dainow (ed.), The Role of Judicial Decisions and Doctrine in Civil Law and in Mixed
Jurisdictions, Baton Rouge, 1974, at pp. 11 et seq. and W. Friedmann, “Stare Decisis at Common Law and
under the Civil Code of Quebec” (1953) 31 Can. Bar Rev. 723 at p. 741 et seq.
62
In the specific case of the United Kingdom, see the European Communities Act, 1972, U.K. 1972, c. 68,
sect. 3, as amended by the European Communities (Amendment) Act 1986, U.K. 1986, c. 58, sect. 2;
Ingram, supra at pp. 377 and 388.
63
Note, however, that the European Court of Justice itself is not bound by its own judgments or opinions.
See Ingman, supra at p. 388.
 18

interpretation of statutes of bodies established by an act of the Council, in response to

references made by national courts of E.U. member-States under art. 234 of the Treaty
Establishing the European Community.64

b) The European Court of Human Rights

Since the European Convention on Human Rights65 has become directly

applicable in the U.K., pursuant to the Human Rights Act 1998,66 U.K. courts, in ruling
on cases arising under the Convention, are obliged to “take account” of any relevant
judgments, decisions, declarations and opinions of the European Court of Human Rights,
the European Commission and the Committee of Ministers of the Council of Europe,
wherever made or given.67

c) The House of Lords

In 1966, a “Practice Statement (Judicial Precedent)” was issued in the House of

Lords as follows:68

“Their Lordships regard the use of precedent as an indispensable

foundation upon which to decide what is the law and its application to
individual cases. It provides at least some degree of certainty upon which
individuals can rely in the conduct of their affairs, as well as a basis for
orderly development of legal rules.

Their Lordships nevertheless recognize that too rigid adherence to

precedent may lead to injustice in a particular case and also unduly restrict

64
The Treaty Establishing the European Community is the Treaty of Rome of March 25, 1957, originally
called the Treaty Establishing the European Economic Community, but renamed by the Treaty on European
Union (the Treaty of Maastricht) of 1992.
65
The Convention for the Protection of Human Rights and Fundamental Freedoms, agreed by the Council
of Europe at Rome on 4th November 1950, to which the U.K. became a party in 1951.
66
U.K. 1998, c. 42, in force October 2, 2000.
67
Human Rights Act 1998, sect. 2(1).
68
[1966] 1 W.L.R. 1234, [1966] 3 All E.R. 77 (H.L.). As the following judgments make it clear, the power
of the House of Lords to overrule one of its own previous decisions will be used very sparingly: Reg. v.
National Insurance Commissioner, Ex parte Hudson [1972] A.C. 944 and Carter v. Bradbeer [1975]
W.L.R. 1204 (H.L.). See also Fitzleet Estates Ltd. v. Cherry [1977] 3 All E.R. 996 (H.L.). In Food Corp.
of India v. Antclizo Shipping Corp. [1988] 2 All E.R. 513 at p. 516, [1988] 2 Lloyd’s Rep. 93 at p. 96
(H.L.), it was held that to justify a review, the Law Lords must feel free to depart from both the reasoning
and the decision in the previous case, and they must be satisfied that such a departure would help resolve
the dispute in the case at bar. In R. v. Secretary of State for the Home Department (ex parte Khawaja)
[1983] 2 W.L.R. 321 at p. 339 (H.L.)., Lord Scarman construed the Practice Statement of 1966 to mean
that the House of Lords, before departing from a previous decision must be satisfied: 1) that continued
adherence to the precedent would involve the risk of injustice and would obstruct the proper development
of the law; and 2) that departure from the precedent was the safe and appropriate way of remedying the
injustice and developing the law. For an example of a reversal meeting these criteria, see Kleinwort Benson
Ltd. v. Lincoln City Council [1998] 4 All E.R. 513 (H.L.), where the 200-year-old common law rule that
money paid under a mistake of fact could not be recovered, was overruled, and should be abolished, as it
had been in other Commonwealth countries and as the Law Commission had recommended in 1994.
 19

the proper development of the law. They propose therefore to modify their
present practice and, while treating former decisions of this House as
normally binding, to depart from a previous decision when it appears right
to do so.

In this connection they will bear in mind the danger of disturbing

retrospectively the basis on which contracts, settlements or property and
fiscal arrangements have been entered into and also the especial need for
certainty as to the criminal law.

This announcement is not intended to affect the use of precedent

elsewhere than in this House.”

d) The Supreme Court of the United States

The importance of the stare decisis doctrine in admiralty in the United States stems
from the power of the Supreme Court to fashion substantive rules of law which then
become binding upon the lower Circuit Courts of Appeal and the District Courts.69 This
power was given to the Supreme Court by the grant of maritime and admiralty
jurisdiction in article III of the U.S. Constitution. The result, as stated by the U.S.
Supreme Court in United States v. Reliable Transfer, is the Court's ability to fashion the
substantive law in admiralty matters:70

“But the judiciary has traditionally taken the lead in formulating flexible
and fair remedies in the law maritime, and ‘Congress has largely left to
this Court the responsibility for fashioning the controlling rules of
admiralty law.’ Fitzgeraid v. United States Lines Co., 374 U. S. 16, 20.”

More recently, the Eleventh Circuit relied upon this grant of power in Schiffs.
Leonhardt v. A. Bottacchi,71 to declare that the admiralty attachment under the general
maritime law as it was at the time of the adoption of the Constitution, co-exists with the
attachment under Supplemental Rule B, because Congress did not specifically abrogate
that attachment.

69
For an example of a U.S. Supreme Court decision changing the prior American maritime law as
expounded by the circuits courts of appeals and the district courts, see Vimar Seguros y Reaseguros S.A. v.
M/V Sky Reefer 515 U.S. 528, 1995 AMC 1817 (1995), where the Supreme Court, overturning Indussa
Corp. v. S.S. Ranborg 377 F.2d 200, 1967 AMC 589 (2 Cir. en banc 1967) and many other precedents
flowing from it, found that foreign arbitration clauses in bills of lading did not per se relieve or lessen the
carrier’s liability contrary to sect. 3(8) of U.S. COGSA (46 U.S.C. Appx. 1303(8)), and hence were not per
se unenforceable in the United States.
70
421 U. S. 397 at p. 409, 1975 AMC 541 at p. 550 (1975). Another major change made by a U.S. Supreme
Court decision in American admiralty law was the elimination of the common-law contributory negligence
bar to recovery in ship collision, in favour of the comparative (proportional) fault rule of division of
collision damages - a rule which was later enshrined in the Collision Convention 1910. See The Max
Morris 137 U.S. 1 at pp. 14-15 (1890).
71
773 F.2d 1528, 1986 AMC 1 (11 Cir. en banc 1985).
 20

The rationale for the stare decisis doctrine was explained by the Supreme Court in
Moragne v. States Marine Lines as follows:72

“Very weighty considerations underlie the principle that courts should not
lightly overrule past decisions. Among these are the desirability that the
law furnish a clear guide for the conduct of individuals, to enable them to
plan their affairs with assurance against untoward surprise; the importance
of furthering fair and expeditious adjudication by eliminating the need to
relitigate every relevant proposition in every case; and the necessity of
maintaining public faith in the judiciary as a source of impersonal and
reasoned judgments. The reasons for rejecting any established rule must
always be weighed against these factors.”

The Fifth Circuit, citing the above holding in Moragne in Coats v. Penrod
Drilling Corp.,73 made an interesting reflection on the special importance of the first
factor (predictability of decisions) for maritime law:

“With respect to the first factor, considered to be ‘the mainstay of stare

decisis,’…, we recognize that the need for predictability in the commercial
maritime arena is arguably greater than in other areas of law and
commerce. This is true because there are already numerous and inherently
unpredictable factors stemming from the perils of the sea and the continual
- and frequently fortuitous - interaction with enterprises of other nations. It
is axiomatic that when the rules of law are clear, parties may contract
within or around their boundaries, and the commercial system is facilitated
in many ways, including reduced litigation, more favorable insurance
coverage, and overall ease of application.”

The Supreme Court of the United States, while willing to change its own case-law
where indicated, nevertheless does not depart lightly from its own established precedents.
In Dickerson v. U.S., for example, it held that:74 “… stare decisis carries such persuasive
force that the Court has always required a departure from precedent to be supported by
some special justification.” The U.S. Supreme Court has declared itself to be particularly
wary of disturbing precedent in matters of statutory construction.75

e) The Supreme Court of Canada

72
398 U.S. 375 at p. 403, 1970 AMC 967 at p. 989 (1970).
73
61 F.3d 1113 at p. 1137, 1996 AMC 1 at p. 38 (5 Cir. 1995).
74
530 U.S. 428 at p. 429 (2000). See also Arizona v. Rumsey 467 U.S. 203, 212 (1984), to the same effect.
75
“…the burden borne by the party advocating the abandonment of an established precedent is greater
where the [Supreme] Court is asked to overrule a point of statutory construction (since) considerations of
stare decisis have special force in the area of statutory interpretation (where) the legislative power is
implicated, and Congress remains free to alter what we have done." Patterson v. McLean Credit Union 491
U.S. 164 at p. 173 (1989). For an interesting analysis of precedent in the U.S. Supreme Court, see Saul
Brenner & Harold J. Spaeth, Stare Indecisis. The Alteration of Precedent on the Supreme Court, 1946-
1992, Cambridge University Press, 1995.
 21

The most authoritative Canadian statement on the meaning of obiter and stare
decisis, and whether the Courts of Appeal of Canada are bound by decisions of the
Supreme Court of Canada is to be found in Binus v. The Queen:76

“If the matter were res integra I would find the reasoning of my brother
Judson and that of Laskin J.A. in the case at bar most persuasive; but it
appears to me that in Mann v. The Queen, [1960] S.C.R. 238 at least five
of the seven members of this Court who heard the appeal decided that
proof of inadvertent negligence is not sufficient to support a conviction
under s. 221(4) and that in so deciding they were expressing a legal
proposition which was a necessary step to the judgment pronounced. I find
it impossible to treat what was said in this regard as obiter, and, in my
respectful view, that proposition should have been accepted by the Court
of Appeal under the principle of stare decisis. The binding effect of a
proposition of law enunciated as a necessary step to the judgment
pronounced is not lessened by the circumstance that the Court might have
reached the same result for other reasons.”

Cartwright J. then commented on whether the Supreme Court of Canada was

bound by its own decisions:77

“I do not doubt the power of this Court to depart from a previous judgment
of its own but, where the earlier decision has not been made per incuriam,
and especially in cases in which Parliament or the Legislature is free to
alter the law on the point decided, I think that such a departure should be
made only for compelling reasons. The ancient warning, repeated by
Anglin CJ.C. in Daoust, Lalonde & Cie Ltée v. Ferland, [1932] S.C.R.
343 at p. 351, (1932) 2 D.L.R. 642 at p. 651, ubi jus est aut vagum aut
incertum, ibi maxima servitus prevalebit, should not be forgotten.”

In 1975, in Harrison v. Carswell,78 Chief Justice Laskin of the Supreme Court,

while dissenting on the main issue, elucidated further:

“This Court, above all others in this country cannot be simply mechanistic
about previous decisions, whatever be the respect it would pay to such
decisions. What we would be doing here, if we were to say that the Peters
case, because it was so recently decided, has concluded the present case
for us, would be to take merely one side of a debatable issue and say that it
concludes that debate without the need to hear the other side.

76
[1967] S.C.R. 594 at pp. 600-601.
77
Ibid. at p. 601. See also the explicit approval of Cartwright, J.’s holding on this point in Minister of
Indian Affairs v. Ranville [1982] 2 S.C.R. 518 at p. 528 per Ritchie, J.
78
[1976] 2 S.C.R. 200 at p. 205, (1976) 62 D.L.R. (3d) 68 at pp. 71-72.
 22

I do not have to call upon pronouncements of members of this Court that

we are free to depart from previous decisions in order to support the
pressing need to examine the present case on its merits.”

The Supreme Court has repeatedly reaffirmed its authority to overrule its prior
case-law, where “compelling reasons” for doing so are demonstrated.79

Thus one can say that in Canada the courts of appeal and the lower courts are
bound by the decisions of the Supreme Court,80 and the lower courts are bound by the
decisions of the appeal courts. The Supreme Court of Canada itself, is not bound by its
own decisions, however.81

4) Stare Decisis - Intermediate Appeal Courts

To what extent are the courts of intermediate appeal (i.e. appellate courts whose
decisions are subject to review by a higher court) bound by their own decisions?

a) The United Kingdom

In the United Kingdom, the Court of Appeal is bound by decisions of the House
of Lords, but is not absolutely bound by its prior decisions. Thus, in Young v. Bristol
Aeroplane Co.,82 Lord Greene M.R., in referring to the Court of Appeal of the United
Kingdom, stated: “The Court is entitled and bound to decide which of two conflicting
decisions of its own it will follow.” In fact, the Young decision listed three categories of
case in which the Court of Appeal was authorized to depart from one its own previous
decisions:83 1) where its previous decisions were in conflict with one another;84 2) where
one of its previous decision was inconsistent with a House of Lords decision, even if the
79
See Reference Re The Farm Products Marketing Act [1957] S.C.R. 198 at p. 212; Binus v. The Queen
[1967] S.C.R. 594 at p. 601; Peda v. The Queen [1969] S.C.R. 905 at p. 911; Barnett v. Harrison [1976] 2
S.C.R. 531 at p. 559; Capital Cities Communications Inc. v. Canadian Radio-Television Commission
[1978] 2 S.C.R. 141 at p. 161; A.V.G. Management Science Ltd. v. Barwell Developments Ltd. [1979] 2
S.C.R. 43, at p. 57; Bell v. The Queen [1979] 2 S.C.R. 212 at pp. 219-220; Minister of Indian Affairs and
Northern Development v. Ranville [1982] 2 S.C.R. 518 at p. 527; R. v. Bernard [1988] 2 S.C.R. 833 at pp.
849-850; R. v. Robinson [1996] 1 S.C.R. 683 at p. 724: “It is beyond doubt that this Court has the power to
overrule one of its previous decisions if there are compelling reasons for departing from the principle of
stare decisis.” (per L’Heureux-Dubé, J., dissenting on other grounds).
80
See R. v. Robinson [1996] 1 S.C.R. 683 at pp. 724-725 (per L’Heureux-Dubé, J.): “In our system of law,
lower courts are obliged to follow the decisions of this Court and, if they fail to do so, they may be in
error.”
81
For examples of the Supreme Court of Canada refusing to follow its own precedents, where departing
from them appeared reasonable and just, see Paquette v. The Queen [1977] 2 S.C.R. 189 at p. 197;
McNamara Construction (Western) Ltd. v. The Queen [1977] 2 S.C.R. 654 at p. 661; Vetrovec v. The
Queen [1982] 1 S.C.R. 811 at p. 830; R. v. Bernard [1988] 2 S.C.R. 833 at p. 850; Clark v. CNR [1988] 2
S.C.R. 680 at p. 704; Alberta Human Rights Commission v. Central Alberta Dairy Pool [1990] 2 S.C.R.
489 at pp. 512 and 517; R. v. Robinson [1996] 1 S.C.R. 683 at pp. 710 and 738.
82
[1944] K.B. 718 at p. 729,[194412 All E.R. 293 at p. 300 (C.A.).
83
See generally T. Ingman, English Legal System, 5 Ed., Oxford University Press, Oxford, 2000 at pp.401-
403.
84
See, for example, National Westminster Bank plc v. Powney [1990] A.C. 2 All E.R. 416 (C.A.);
Finnegan v. Parkside Health Authority [1998] 1 All E.R. 595 (C.A.).
 23

previous decision had not been expressly overruled by the Law Lords;85 and 3) where its
previous decision had been rendered per incuriam (i.e. by mistake or carelessness).86

Lord Denning took a wider view, believing that after 1966, House of Lords
decisions were no longer binding on the Court of Appeal,87 and that the Court of Appeal
itself was free to depart from its own precedents generally, and not just in the three
exceptional cases identified in Young. On the latter point, he declared in Gallie v. Lee:88

“… I do not think we are bound by prior decisions of our own, or at any

rate, not absolutely bound .We are not fettered as it was once thought. It
was a self-imposed limitation: and we who imposed it can also removed it.
The House of Lords have done it. So why should not we do likewise? We
should be just as free,, no more and no less, to depart from a prior
precedent of our own, as in like case is the House of Lords or a judge of
first instance. It is very, very rarely that we will go against a previous
decision of our own, but if it is clearly shown to be erroneous, we should
be able to put it right.”

Lord Denning’s position did not find favour with the Law Lords, who criticized
his conclusion in a number of decisions, reaffirming that the House of Lords bound the
Court of Appeal89 (even where the House’s decisions were wrong) and that the Court of
Appeal could only abandon its own previous case-law in the three exceptional situations
evoked in Young.90 One particularly strong rebuff was voiced by Lord Scarman in Davis
v. Johnston:91

“[T]he rule as it had been laid down in the Bristol Aeroplane case had
never been questioned thereafter until, following upon the announcement
by Lord Gardiner LC in 1966 that the House of Lords would feel free in
exceptional cases to depart from a previous decision of its own, Lord
Denning MR conducted what may be described, I hope without offence, as
a one-man crusade with the object of freeing the Court of Appeal from the
shackles which the doctrine of stare decisis imposed upon its liberty of
decision….

85
See, for example, Family Housing Association v. Jones [1990] 1 All E.R. 385 (C.A.).
86
Most often, a decision is rendered per incuriam, where the court fails to consider a particular statute
which applies or some binding precedent relevant to the case. See, for example, Duke v. Reliance Systems
Ltd. [1987] 2 All E.R. 858 (C.A.), upheld without discussion of the per incuriam point in Duke v. G.E.C.
Reliance Ltd. [1988] A.C. 618 (H.L.).
87
See, for example, Lord Denning’s statements in Schorsch Meier GmbH. v. Hennin [1975] Q.B. 416 at pp.
424-425 (C.A.).
88
[1969] 2 Ch. 17 at p. 37, [1969] 1 All E.R. 1062 at p. 1072 (C.A.). See also Tiverton Estates Ltd. v.
Wearwell Ltd. [1975] Ch. 146 at p. 160, [1974] 1 All E.R. 209 at p. 218 (C.A.).
89
Cassell & Co. Ltd. v. Broome [1972] A.C. 1027 at p. 1054 (H.L. per Lord Scarman); Miliangos v.
George Frank (Textile) Ltd. [1976] A.C. 443 at p. 496 (H.L. per Lord Cross).
90
Tiverton Estates Ltd. V. Wearwell Ltd. [1975] Ch. 146 at pp. 72-173 (H.L. per Lord Scarman); Davis v.
Johnston [1979] A.C. 264 (H.L.). Lord Denning described the House of Lords’ decision in Davis as “my
most humiliating defeat”. See The Discipline of the Law, 1979 at p. 299.
91
[1979] A.C. 264 at pp. 325-328 (H.L.).
 24

“In my opinion, this House should take this occasion to reaffirm expressly,
unequivocally and unanimously that the rule laid down in the Bristol
Aeroplance case as to stare decisis is still binding on the Court of
Appeal.”

Today, it seems clear that the Court of Appeal is bound by the House of Lords. It
is also likely that the Court of Appeal, as well as the House of Lords and the lower
courts, would be bound by decisions of the European Court with respect to matters of
European Union law as it applies to the U.K.92

Of course, Court of Appeal decisions are binding on the High Court and the
county courts, but not on the House of Lords.

b) The United States Circuit Courts of Appeals

The role of stare decisis and precedent in general is unique in the United States
because of the particular make-up of the federal judiciary. Since the federal courts have
jurisdiction over all admiralty and maritime cases,93 it is important to understand the
potential effect of a particular decision upon the other courts.

The courts of instance in the federal system are the United States District Courts.
These are divided by statute into ninety-one districts, with each state comprising at least
one district.94 The district courts, in turn, are grouped together into thirteen judicial
circuits, each containing a United States Court of Appeals for that circuit.95 The work of
these courts of appeals is mainly appellate, with review taken from the district courts
located within the judicial circuit.

All federal courts, both district96 and circuit,97 are bound under the principle of
stare decisis to follow the decisions of the United States Supreme Court. The same rule
of obedience applies to the District Courts, which are bound by the decisions of the court
92
Ingman, supra at pp. 406-407. Ingman believes that the Court of Appeal would be required to depart
from any of its previous decisions which was found to be inconsistent with European Community law.
93
28 U.S. Code sect. 1333.
94
28 U.S. Code sects. 81-131.
95
28 U.S. Code sect. 41.
96
See In re Bernstein 81 F. Supp.2d 176 at p. 1818, 2000 AMC 760 at p. 767 (D. Mass. 1999): “Where the
Supreme Court has spoken to an issue, it is the duty of the lower federal courts to follow that analysis
without regard to arguably changed conditions. Indeed, the First Circuit has very recently acknowledged
the duty of the lower federal courts to follow the Supreme Court's ‘directly applicable precedent, even if
that precedent appears weakened by pronouncements in its subsequent decisions, and to leave to the
[Supreme] Court the prerogative of overruling its own decisions.’ National Foreign Trade Council v.
Natsios, 181 F.3d 38, 59 (1 Cir. 1999) (quoting Agostini v. Felton, 521 U.S. 203, 237 [1997]).”
97
Red Star Barge Line, Inc. v. Nassau County Bridge Authority 683 F.2d 42 at p. 45, 1982 AMC 2588 at p.
2591 (2 Cir. 1982), re the “century-old, obsolescent doctrine” (see AMC headnote) that insurance proceeds
paid to a shipowner entitled to limit liability are not available to the injured party must be followed until re-
examined by the U.S. Supreme Court. See also Stewart v. Dutra Construction Co., Inc. 230 F.3d 462 at p.
467, 2001 AMC 1116 at p. 1121 (1 Cir. 2000): “Prior circuit precedent will yield to a contrary decisions of
the Supreme Court or to a statutory overruling”, citing Williams v. Ashland Engineering Co. 45 F.3d 588 at
p. 592 (1 Cir. 1995).
 25

of appeals of the circuit in which the district court is located.98 As recently stated by one
district court judge in Owen-Illinois, Inc. v. Aetna Casualty and Surety Co.:99

“The doctrine of stare decisis compels district courts to adhere to a

decision of the Court of Appeals of their Circuit until such time as the
Court of Appeals or the Supreme Court of the United States sees fit to
overrule the decision.”

The picture becomes far less clear, however, when there is no binding precedent
from that circuit and all that exists are district court decisions, because the district courts
are not bound either by other district courts100 or by the courts of appeals from another
circuit. Decisions not in the direct hierarchical chain are considered as having only
persuasive authority.101 The result is that the circuits often develop the law along parallel
or even conflicting lines.102 Whether or not there is a conflict between the circuits is
often the determinative factor in obtaining review by the Supreme Court.103
98
See, for example, Guevara v. Cia Sud Americana de Vapores 1978 AMC 2000 at p. 2005(D. C.Z.):
“Until and unless, Congress or the Fifth Circuit considers the matter, this Court is of the opinion that it is
bound to follow the precedent established in Sandoval [a Fifth Circuit decision].”
99
597 F. Supp. 1515 at p. 1520 (D. D.C. 1984).
100
See, for example, Fishman & Tobin, Inc. v. Tropical Shipping & Construction Co., Ltd. 240 F.3d 956 at
p. 965, 2001 AMC 1663 at p. 1674 (11 Cir. 2001): “Unlike circuit court panels where one panel will not
overrule another, see Julius v. Johnson, 755 F.2d 1403, 1404 (11 Cir. 1985), district courts are not held to
the same standard.… While the decisions of their fellow judges are persuasive, they are not binding
authority. See Aguirre v. United States, 956 F.2d 1166 (9 Cir. 1992) (unpublished);…. As a result, the
district court cannot be said to be bound by a decision of one of its brother or sister judges.”
101
See 13 Moore's Federal Practice R. 0402[l], at p. 15.
102
A classic case of this kind of inter-circuit division in interpreting U.S. COGSA has developed as
between the Ninth Circuit, on the one hand, and the Second, Fifth and Eleventh Circuits, on the other, in
respect of the burden of proof in cases of cargo loss or damage caused by fire. In the Ninth Circuit, the
defendant carrier, to be exonerated from liability for such fire loss under COGSA, must first prove that it
exercised due diligence to make the ship seaworthy before and at the beginning of the voyage, in respect of
the loss. See Sunkist Growers v. Adelaide Shipping Lines 603 F.2d 1327 at pp. 1335-1336, 1979 AMC
2787 at p. 2807 (9 Cir. 1979), cert. denied, 444 U.S. 1012, 1980 AMC 2102 (1980); Hasbro Industries, Inc.
v. M.S. St. Constantine 705 F.2d 339 at p. 341, 1983 AMC 1841 at pp. 1842-1843 (9 Cir. 1983); Complaint
of Damodar Bulk Carriers, Ltd. 903 F.2d 675 at p. 686, 1990 AMC 1544 at pp. 1560-1561 (9 Cir. 1990);
Nissan Fire & Marine Ins. Co., Ltd. v. M/V Hyundai Explorer 93 F.3d 641 at pp. 645-646, 1996 AMC
2409 at p. 2413 (9 Cir. 1996). On the other hand, in the Second, Fifth and Eleventh Circuits, the carrier
does need to make any such proof of due diligence before invoking the fire exception of COGSA, but needs
only to prove that the loss or damage was caused by fire, after which the cargo claimant must try to prove
that the fire resulted from the design or neglect, or the actual fault or privity, of the carrier or his servants or
agents. See Ta Chi Navigation (Panama) Corp. S.A. 677 F.2d 225 at p. 228, 1982 AMC 1710 at p. 1713 (2
Cir. 1982); Westinghouse Electric Corp. v. M/V Leslie Lykes 734 F.2d 199, 1985 AMC 247 (5 Cir. 1984);
Banana Services, Inc. v. M/V Tasman Star 68 F.23d 418 at p. 421, 1996 AMC 260 at p. 264 (11 Cir. 1995).
See generally Chap. 17: Fire, infra. As a result of these divergent interpretations, a U.S. Supreme Court
decision or remedial legislation will be required to clarify the legal principle at stake. See Terry Marquez,
“The Ninth Circuit Fails to Mend the Inter-Circuit Split Regarding the Burden of Proof in Fire Statute
Cases: Nissan Fire & Marine Insurance Co. v. M/V Hyundai Explorer” (1997) 21 Tul. Mar. L.J. 629 at pp.
640-641.
103
Rule 10 of the United States Supreme Court, which governs review on certiorari, reads in part as
follows: “1. A review on writ of certiorari is not a matter of right, but of judicial discretion. A petition for a
writ of certiorari will be granted only for compelling reasons. The following, although neither controlling
nor fully measuring the Court's discretion, indicate the character of the reasons the Court considers: (a) a
 26

c) Canada

Each of the ten provinces and three territories in Canada has its own Court of
Appeal. Judicial attitudes respecting the doctrine of the stare decisis vary from one court
to another. The Ontario Court of Appeal, from the standpoint of strict adherence to the
doctrine of stare decisis, has been characterized as the most conservative.

In general, the appellate courts of the common-law provinces and territories are
bound by the decisions of the Supreme Court of Canada,104 and ordinarily follow their
own previous decisions, although they may overrule their past judgments where serious
reasons warrant doing so.105 They are not bound by the decisions of other Canadian
common-law appellate courts, such decisions being purely persuasive authority.106 The
decisions of the courts of appeal in each common-law province or territory bind the
courts inferior to them within that same jurisdiction.107 The latter courts (i.e. provincial
superior and inferior courts) usually follow the decisions of courts of co-ordinate
jurisdiction, but may depart from them where there are strong reasons for doing so (e.g.
where the decisions of the other courts are inconsistent or were rendered per
incuriam).108

On the other extreme, the Québec Court of Appeal (Québec is a mixed

jurisdiction) has never considered itself bound by previous decisions.109 Nevertheless,

United States court of appeals has entered a decision in conflict with the decision of another United States
court of appeals on the same important matter; has decided an important federal question in a way that
conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual
course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of
this Court's supervisory power;…”
104
R. v. Wolf [1975] 2 S.C.R. 107, (1975) 47 D.L.R.(3d) 741.
105
See, for example, Nova, An Alberta Corp. v. Guelph Engingeering Co. (1984) 30 Alta. L.R.(2d) 183,
(1984) 5 D.L.R. (4th) 755 (Alta. C.A.); Green v. A.-G. for British Columbia (1986) 29 C.R.R. 35 (B.C.
S.C.), referred to in R.V.P. Enterprises Ltd. v. British Columbia (Minister of Consumer and Corporate
Affairs) [1988] 4 W.W.R. 726, (1988) 25 B.C.L.R.(2d) 219, (1988) 50 D.L.R.(4th) 394 (B.C. C.A.), leave to
appeal denied, [1988] 6 W.W.R. lxix (note), (1988) 28 B.C.L.R.(2d) xxxi (note), (1988) 50 D.L.R.(4th) vii
(note) (Supr. Ct. Can.). See generally Gerald L. Gall, Canadian Legal System, 4 Ed., Carswell, Toronto,
1995 at pp. 351-353.
106
R. v. Wolf [1975] 2 S.C.R. 107, (1975) 47 D.L.R.(3d) 741; R v. Tait [2001] O.J. No. 2948 at para. 81;
Gall, op. cit. at pp. 355-356.
107
R. v. Northern Electric Co. Ltd. [1955] O.R. 431, [1955] 3 D.L.R. 449 (Ont. High C.). Lower
provincial/territorial courts are not bound, however, by decisions of courts of co-ordinate jurisdiction in
other provinces or territories, or by the decisions of the appellate courts of other provinces or territories.
See R v. Constable Transport Ltd. [1967] 1 O.R. 357, (1966) 60 D.L.R.(2d) 577 (Ont. County C.); R v.
Beaney [1969] 2 O.R. 71, (1969) 4 D.L.R.(3d) 369 (Ont. County Ct.); Gall, op. cit. at pp. 357-358.
108
Horne v. Horne Estate (1986) 54 O.R.(2d) 510 (Ont. High C.), aff’d on other grounds, (1987) 60
O.R.(2d) 1, (1987) 37 D.L.R.(4th) 216 (Ont. C.A.); Re Ellwood Robinson Ltd. and Ohio Dev. Co. (1975) 7
O.R.(2d) 556 (Ont. Dist. C.); Holmes v. Jarrett [1993] 1 I.L.R. 1-2949 (Ont. Ct. Gen. Div.); R. v. Koziolek
(1999) 40 M.V.R. (3d) 304 (Ont Ct. Gen. Div.); Gall, op. cit. at pp. 356-357.
109
Reid v. McFarlane (1893) 2 C.B.R. 130; Migner v. St. Lawrence Fire Insurance Co. (1901) 10 C.B.R.
122; Callpro Canada Inc. v. Prima Télématique Inc. (2001) 16 B.L.R. (3d) 202 at p. 216 (Ont. Supr. Ct.).
See Nicole Bernier, “L’autorité du précédent judiciaire à la Cour d’appel du Québec” (1971) 6 Revue
Juridique Thémis 535. For a general survey on the doctrine of stare decisis in Canadian provincial
 27

Québec’s status as a mixed jurisdiction, in which the civilian private law co-exists with
public law of common-law inspiration (notably in the constitutional, criminal and
administrative fields), has resulted in “jurisprudence” (i.e. case-law) having a higher
profile in practice in the Province’s legal system than it would in a “pure” civil law
jurisdiction. Eliadis has observed:110

“Quebec judges tend now to write lengthy judgments setting out facts,
reasons and conclusions in much the same style as one sees in Common
law jurisdictions. Contrary to the traditional short, non-discursive form of
judgments in Civil law systems which give no insight into judicial
reasoning, the current trend lends itself to the development of legal
principles and their application to fact patters that are not necessarily on
all fours with those in a given precedent. Inevitably, these tensions create
serious question as to the proper place and role of decided cases.
“In practice, however, the issue is largely moot. Cases are cited before the
Quebec courts in much the same manner and with the same deference for
appellate decisions as one might find in a Canadian court in a Common
law jurisdiction. Even if the theory may vary, lower courts have adopted a
de facto principle of stare decisis.”

The Federal Court of Canada, in which the bulk of litigation on maritime law
matters has been conducted in Canada since its establishment in 1971,111 formerly
consisted of a Trial Division and an Appeal Division. In 2003, however, the two divisions
were split into two separate courts by legislation.112 The Trial Division became the
"Federal Court" and the Appeal Division became the "Federal Court of Appeal". Each
former division, under its new name, is declared to be "continued as a court of law, equity
and admiralty in and for Canada, for the better administration of the laws of Canada113
and as a superior court of record having civil and criminal jurisdiction."114 Both courts
exercise various heads of jurisdiction defined by the Federal Courts Act.115

The Federal Court of Appeal, as an intermediate appellate court, ordinarily

follows its own previous decisions, but is not bound to do so, where it finds that any such

appellate courts, see: J.D. Murphy and R. Rueter, Stare Decisis in Commonwealth Appellate Courts,
Buttterworths, Toronto, 1981, at pp. 24-55.
110
F. Pearl Eliadis, “The Legal System in Quebec”, being chap. 8 of Gerald L. Gall, op. cit., 209-229 at p.
221.
111
The Federal Court of Canada was established by the Federal Court Act, R.S.C. 1970, 2nd Supp., c. 10, in
force June 1, 1971. It replaced the former Exchequer Court of Canada, in which most Canadian admiralty
litigation had taken place since its establishment in 1875.
112
The Court Administration Service Act, S.C. 2002, c. 8, in force July 2, 2003, pursuant to SI/2003-109.
113
By virtue of sect. 101 of the Constitution Act, 1867, R.S.C. 1985, App. II, no. 5 (formerly the British
North America Act, 1867, U.K., 30 & 31 Vict., c. 3, but renamed by the Canada Act 1982, U.K. 1982, c.
11), the federal Parliament is empowered to establish courts for the "better administration of the laws of
Canada". The Federal Court and the Federal Court of Appeal are therefore federal courts within the
meaning of sect. 101 of the Canadian Constitution.
114
S.C. 2002, c. 8, sect. 16.
115
R.S.C. 1985, c. F-7, formerly the "Federal Court Act", but pluralized as the "Federal Courts Act" by the
Court Administration Service Act, S.C. 2002, c. 8, sect. 14.
 28

decision is manifestly incorrect,116 following in this matter the principles laid down for
the English Court of Appeal in the United Kingdom in Young v. Bristol Aeroplane.117

The Federal Court is bound only by decisions of the Supreme Court and those of
the Federal Court of Appeal.118 Any decision of the Federal Court of Appeal is binding
on the Federal Court, even while the appeal from the Court of Appeal's judgment is
pending before the Supreme Court of Canada.119The Federal Court, like the Federal Court
of Appeal, normally respects its own precedents, unless they are shown to be manifestly
incorrect or likely to result in severe injustice.120

VI. Jurisdiction and Authority

Before the application of stare decisis to the Judicial Committee of the Privy
Council is considered, it is appropriate to study the jurisdiction of the Committee.

1) Jurisdiction

The jurisdiction of the Judicial Committee of the Privy Council arose out of the
prerogative right of the Sovereign to entertain appeals from the courts of her
dominions.121

In Nadan v. The King,122 Viscount Cave L.C. wrote on behalf of the Committee
that:

“The practice of invoking the exercise of the royal prerogative by way of appeal
from any Court in His Majesty's Dominions has long obtained throughout the
British Empire. In its origin such an application may have been no more than a
petitory appeal to the Sovereign as the fountain of justice for protection against
an unjust administration of the law; but if so, the practice has long since ripened
116
See, for example, Armstrong Cork Canada Ltd. v. Domco Industrial Ltd. [1981] 2 F.C. 510 at p. 517
(Fed. C.A.), leave to appeal dismissed, [1982] 1 S.C.R. 907; The Queen v. Pollack [1984] C.T.C. 353 (Fed.
C.A.); Widmont v. Minister of Employment & Immigration [1984] 2 F.C. 274 at p. 281, (1984) 56 N.R. 198
at p. 201 (Fed. C.A.); Apotex Inc. v. Janssen Pharmaceutical (1997) 208 N.R. 395 (Fed. C.A.); Canada v.
Hollnger Inc. [2000] 1 F.C. 227, (2000) 246 N.R. 344 (Fed. C.A.) (Judicial comity and the need for
certainty in the law require that precedent be followed unless there is some overriding error in the
authorities.)
117
[1944] 2 K.B. 718 (C.A.). See discussion of these principles in sect. V(4)(a), supra.
118
Ibid.
119
Strachan v. Canada (Minister of Citizenship & Immigration) (1998) 157 F.T.R. 267 at p. 269 (Fed. C.
Can.).
120
Glaxo Group Ltd. v. Canada (Minister of National Health and Welfare) (1996) 64 C.P.R. (3d) 65 (Fed.
C. Can.); Ahani v. Canada (Minister of Citizenship & Immigration) (1999) 170 F.T.R. 153 (Fed. C. Can.);
Ziyadah v. Canada (Minister of Citizenship & Immigration) [1999] 4 F.C. 152, (1999) 169 F.T.R. 282
(Fed. C. Can.).
121
Halsbury’s Laws of England, 4 Ed. Reissue, vol. 10, Butterworths, London, 2002, para. 403 at p. 183.
These appeals came to be regulated by a series of Imperial statutes, the most important being the Judicial
Committee Act, 1833 (3 & 4 Will. 4, c. 41).
122
[1926] A.C. 482 at p. 491 (P.C.).
 29

into a privilege belonging to every subject of the King. In the United Kingdom
the appeal was made to the King in Parliament, and was the foundation of the
appellate jurisdiction of the House of Lords; but in His Majesty's Dominions
beyond the seas the method of appeal to the King in Council has prevailed and is
open to all the King’s subjects in those Dominions.”

Technically, therefore, before 1931 (when the Statute of Westminster, 1931123

removed the last restrictions on the legislative powers of the Dominions124) no colony
subject to the British Crown would have denied a citizen, as a subject of Her Majesty,
“his right to claim redress from the throne”.125

At the turn of the twentieth century, one-fourth of the world’s population was
subject to the Privy Council’s jurisdiction.126 Today, a right of appeal to the Committee
exists only in relation to the following: Akrotiri and Dhekelia (U.K. Sovereign Base
Areas in Cyprus), Anguilla, Antigua and Barbuda, the Bahamas, Barbados, Belize,
Bermuda, the British Antarctic Territory, the British Indian Ocean Territory, the British
Virgin Islands, the Cayman Islands, the Falkland Islands, Gibraltar, Grenada, Jamaica,
Mauritius, Montserrat, New Zealand,127 St. Christopher (St. Kitts) and Nevis, St. Helena,
St. Lucia, St. Vincent and the Grenadines, Trinidad and Tobago, the Turks and Caicos
Islands and Tuvalu.128 There is a similar right of appeal in respect of the Channel Islands
and the Isle of Man.129

The Caribbean Community is taking steps to establish a final court of appeal (the
Caribbean Court of Justice), which would replace the Judicial Committee of the Privy
Council as the final court of appeal for a number of the above-mentioned Caribbean
States and some others.130
123
An Act to give effect to certain resolutions passed by Imperial Conferences held in the years 1926 and
1930 (22 Geo. 5, c. 4.).
124
Ibid., sect. 1: “In this act the expression ‘dominion’ means any of the following Dominions, that is to
say, the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, the Union
of South Africa, the Irish Free State and Newfoundland.”
125
From the memorandum addressed by Mr. H. Reeve, Registrar of the Privy Council, to the Under
Secretary of state for the Colonies, dated 20th July 1871, cited in Frank Safford and George Wheeler, The
Practice of the Privy Council in Judicial Matters, etc., Sweet & Maxwell, London, 1901, at p. xi. Hence an
attempt by the Dominion of Canada, in 1888, to limit appeals to the Privy Council in criminal matters was
held to be invalid: Nadan v. The King [1926] A.C. 482 (P.C.).
126
Safford & Wheeler, op. cit., at p. vii.
127
Note, however, that a Supreme Court of New Zealand Bill was introduced in the New Zealand
Parliament in December 2002, which would establish a five-judge New Zealand Supreme Court as the final
court of appeal for all New Zealand cases (civil and criminal), thus replacing the Judicial Committee of the
Privy Council. See Noel Cox, “The abolition or retention of the Privy Council as the final Court of Appeal
for New Zealand: Conflict between national identity and legal pragmatism” (2002) 20(2) New Zealand
Universities Law Review 220-238, also to be found at
http://www.geocities.com/noelcox/Privy_Council_NZULR.htm.
128
Among the countries and territories from which the Judicial Committee of the Privy Council is no
longer the final court of appeal in civil matters, are The Gambia, Hong Kong, Malaysia, Seychelles,
Singapore and the West Indies Associated States.
129
Halsbury’s Laws of England, op. cit., at para. 403, pp. 184-185, and yearly cumulative supplements.
130
The Agreement Establishing the Caribbean Court of Justice, signed at Barbados, February 14, 2001 (see
http://www.caricom.org/archives/ccj-agreement.pdf), requiring ratification by only three Contracting
 30

2) Abolition of the right to appeal by Commonwealth Members

The right of appeal has been (or may eventually be) terminated by a number of
independent members of the Commonwealth, either on their becoming republics or by
specific legislation.

a) On becoming republics

A classic example is India. On August 15, 1947, the United Kingdom

government ceased to have responsibility for any of the territories in British India. The
Constitution of India came fully into force on January 26, 1950. The Indian statute
abolishing all appeals to the Privy Council was passed in 1949.131

One should note, however, that a few former colonies, on becoming independent
republics, have nevertheless retained a right of appeal to the Privy Council, e.g.
Dominica,132 Kiribati,133 Mauritius134 and Trinidad and Tobago,135 while a very limited
right of appeal survives in cases from Brunei.136

States, would permit the Member-States of the Caribbean Community (CARICOM), and other Caribbean
countries invited by the Conference of Heads of Government of the Member-States of the Caribbean
Community, to accept the jurisdiction of the proposed Caribbean Court of Justice (CCJ) as their final court
of appeal. The countries concerned are: Antigua and Barbuda, Barbados, Belize, Dominica, Grenada,
Guyana, Haiti, Jamaica, Montserrat, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines,
Suriname and Trinidad and Tobago. Note that Haiti and Suriname are civilian jurisdictions. The
inauguration of the CCJ is expected to occur in the first quarter of 2005. See Press Release 157/2004 of the
Secretariat of the Caribbean Community, dated October 11, 2004 at http://www.caricom.org/. See
generally, Hugh Rawlins, Caribbean Court of Justice: The History and Analysis of the Debate, Preparatory
Committee on the Caribbean Court of Justice, CARICOM Secretariat, Georgetown, 2000; Rhea P.
Hamilton, “A Guide to Researching the Caribbean Court of Justice” (2002) 27 Brooklyn J. Int’l L. 531-
542.
131
Abolition of Privy Council jurisdiction Act 1949 (Const. Assy. Art. no. v of 1949 (India)). An early and
often overlooked example of severance of ties with the Privy Council by a jurisdiction upon becoming a
republic is that of the United States. Prior to the American Revolution the Judicial Committee of the Privy
Council was not only the final court of appeal for the Thirteen Colonies, it also had the power of annulling
the enactments of the colonial legislatures. See generally Lawrence M. Friedman, A History of American
Law, 2 Ed., Simon & Shuster, New York, 1985, and Julius Goebel, Jr., History of the Supreme Court of the
United States, vol. I, Macmillan, New York, 1971, at p. 35 et seq. See also Joseph H. Smith, Appeals to the
Privy Council from the American Plantations, Columbia University Press, New York, 1950 (1965 reprint
by Octagon Books, New York); and Elmer Beecher Russell, The Review of American Colonial Legislation
by the King in Council (1915: 1976 reprint by Octagon Books, New York).
132
Commonwealth of Dominica Constitution Order 1978, S.I. 1978 No. 1027, Sch. 1, sect. 106, Sch. 2,
para. 9; and the Dominica Modification of Enactments Order 1978, S.I. 1978 No. 1030, art. 4.
133
Kiribati Act 1979, U.K. 1979, c. 27, sect. 6, as amended by the Statute Law (Repeals) Act 1986, U.K.
1986, c. 12.
134
Mauritius Republic Act 1992, U.K. 1992, c. 45, sect. 2; Mauritius Appeals to Judicial Committee Order
1992, S.I. 1992 No. 1716.
135
Trinidad and Tobago Act Republic 1976, U.K. 1976, c. 54, sect. 2, as amended by the Statute Law
(Repeals) Act 1986; The Trinidad and Tobago Appeals to Judicial Committee Order 1976, S.I. 1976 No.
1915.
136
In 1989, the U.K. and Brunei governments agreed that certain appeals from the Supreme Court of
Brunei would continue to be heard by the Privy Council, but that the Judicial Committee would tender its
 31

b) By specific legislation

The right to appeal to the Privy Council may be completely abrogated by

legislation (as with Canada in 1949137) or seriously limited (as with Australia until
recently138). Where the right of appeal is terminated, it is customary for the Committee to
retain jurisdiction in the case of pending appeals. Canada's Supreme Court Act, 1949,139
for example, which made all judgments by the Supreme Court final, specifically provided
at sect. 7 that any judicial proceeding commenced prior to the coming into force of the
Act could be appealed to the Privy Council. The last Canadian appeal was therefore not
determined until 1959.140

advice on such appeals to the Sultan of Brunei, rather than to the Queen. See Brunei (Appeals) Act 1989,
U.K. 1989, c. 36, and the Brunei (Appeals) Order 1989, S.I. 1989, No. 2396. The right of appeal in
criminal cases was subsequently eliminated, however, and was retained in civil cases only where the
parties, before the hearing of their appeal by the Supreme Court of Brunei, agree in writing to be bound by
an appeal to the Sultan. See Brunei (Appeals) (Amendment) Order 1998, S.I. 1998, No. 255.
137
Supreme Court Act, 1949 (13 Geo. 6, c. 37). As early as 1888, the Canadian Parliament enacted an
amendment to the Criminal Code providing that the judgments of the Supreme Court of Canada should be
final in all criminal matters. Thirty-eight years later, in Nadan v. The King [1926] A.C. 482 (P.C.), the
Privy Council held the amendment to be invalid. In 1933, however, shortly after the Statute of Westminster
had conferred on the dominions the capacity to repeal or amend Imperial statutes, Canada again enacted
legislation abolishing the right of appeal in criminal cases. This new act was upheld by the Privy Council in
British Coal Corp. v. The King [1935] A.C. 500 (P.C.). In 1939, the Canadian government introduced a bill
to abolish the remaining appeals to the Privy Council. The bill became law only 10 years later after the
Privy Council, in A.-G. Ont. v. A.-G. Can. [1947] A.C. 127 (P.C.), upheld the constitutional validity of the
scheme. See Peter W. Hogg, Constitutional Law of Canada, 4 Ed., Carswell, Toronto, 1997, para. 8.2 at pp.
212-214; Mark R. MacGuigan, “Precedents and Policy in the Supreme Court” (1967) 45 Can. Bar Rev. 627
at pp. 628-638; W.S. Livingston, “Abolition of Appeals from Canadian Courts to the Privy Council” (1950-
51) 64 Harv. L. Rev. 104; James G. Snell & Frederick Vaughan, The Supreme Court of Canada: History of
the Institution, University of Toronto Press, Toronto, 1985, at pp. 182-195.
138
By virtue of the Privy Council (Limitation of Appeals) Act 1968 (Cth.), No. 36 of 1968), applications to
the Privy Council for leave to appeal from the High Court became impossible in all federal matters. By the
Privy Council (Appeals from the High Court) Act 1975 (Cth.), No. 33 of 1975, such applications for leave
to appeal could no longer be made from any decision of the High Court or from any decision of the
Supreme Court of a State exercising federal jurisdiction. These Acts were subject to sect. 74 of the
Australian Constitution (Cth.) which provides that “No appeal shall be permitted to the Queen in Council
from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the
Constitutional powers of the Commonwealth and those of any State or States ... unless the High Court shall
certify that the question is one which ought to be determined by Her Majesty in Council.” The High Court
has only once granted such a certificate, in Colonial Sugar Refining Co. v. Commonwealth (1912) 15
C.L.R. 182. The High Court, in Kirmani v. Capt. Cook Cruises (1984-85) 58 A.L.R. 108 at p. 109, (1985)
59 A.L.J.R. 480 at p. 481 (High C. of Aust.), in refusing to issue a certificate under sect. 74, expressed the
view that: “Although the jurisdiction to grant a certificate stands in the Constitution, such limited purpose
as it had has long since been spent. The march of events and the legislative changes that have been effected
- to say nothing of national sentiment - have made the jurisdiction obsolete.” Sect. 74 is now a dead letter.
On March 3, 1986, with the coming into force of the Australia Act 1986 (Cth.), No. 142 of 1985; U.K.,
1986, c. 25, all remaining appeals to the Privy Council were terminated, subject, however, to the
continuation of appeals instituted before the commencement of the Act (see sect. 11). See generally T.
Blackshield & G. Williams, Australian Constitutional Law and Theory. Commentary and Materials, 3 Ed.,
The Federation Press, Sydney, 2002 at pp 568-572.
139
13 Geo. 6, c. 37.
140
Ponoka-Calmar Oils v. Wakefield [1960] A.C. 18 (P.C.).
 32

Finally, one should note that independence per se of a colony or dominion, which
retains the Queen as its head of state, is not enough to terminate appeals to the Privy
Council. A law by the newly independent Parliament must be passed to that effect.141

3) Authority of the Privy Council

a) Never binding on itself

A judgment of the Privy Council is in the form of an advice to the sovereign. The
decision is then transformed into an Order in Council made by the Sovereign in Council,
which is then transmitted to the governmental authority responsible for the administration
of justice in the territory concerned.142 Because of the long-held fiction that the judges
were simply giving advice to the sovereign143 they (unlike the House of Lords prior to the
Lord Chancellor’s Statement on Precedent, 26 July 1966)144 were never bound by their
own decisions.

As Lord Diplock stated in Baker v. The Queen145 (an appeal from Jamaica):

“The Judicial Committee of the Privy Council is not strictly bound to follow the
ratio decidendi of its previous decisions. It has always claimed the power to
overrule its previous decisions even where they are fully reasoned, although in the
interests of certainty of the law this is a power that it will exercise only in
exceptional circumstances.”

b) Before abolition

i) Binding upon the jurisdiction from where the appeal arose

Although the Privy Council may only recommend to Her Majesty in Council, the
Order in Council which gives effect to the Committee’s report is a judicial order - it is in
everything but form the equivalent of a legal judgment.146 It is an “order or decree ... on
appeal” (sect. 21 of the Judicial Committee Act, 1833)147 and is mandatory in its
directions to those whom it affects by virtue of the provisions of sect. 21.

141
Ibralebbe v. The Queen [1964] A.C. 900 (P.C.). On appeal from the Supreme Court of Ceylon.
142
Louis Blom-Cooper & Gavin Drewry, Final Appeal: A Study of the House of Lords in its Judicial
Capacity, Clarendon Press, Oxford, 1972, at p. 110.
143
This fiction, according to Messrs. Blom-Cooper & Drewry, op. cit., at p. 110, was abandoned when
dissenting judgments were allowed for the first time by the Judicial Committee (Dissenting Opinion) Order
in Council 1966.
144
Practice Statement Judicial Precedent) [1966] 1 W.L.R. 1234, [1966] 3 All E.R. 77 (H.L.).
145
[1975] A.C. 774 at pp. 787-788. See also Lord Wright, “Precedents” (1942-44) 8 Cambridge L.J. 118 at
p. 136.
146
lbralebbe v. The Queen [1964] A.C. 900 at p. 921 (P.C.).
147
3 & 4 Will. 4, c. 41.
 33

From this it follows that in as much as a court within Her Majesty’s dominions
accepts the doctrine of precedent (or stare decisis), under which the decisions of a court
are binding on courts lower in the judicial hierarchy, a decision by the Privy Council is
binding upon it.

Therefore, before the abolition of Canadian appeals to the Privy Council, there
was never any doubt that all Canadian courts, including the Supreme Court of Canada,
were bound to follow the decisions of the Committee.148

This represents the formal position in Australia as well.149 It is open to argument,

however, whether the High Court has always followed the rule faithfully.150

One should also note that the rule in Robins v. National Trust Co.151 made the
decisions of the House of Lords binding, on points of English law, on the courts of the

148
P.W. Hogg, Constitutional Law of Canada, 4 Ed., Carswell, Toronto, 1997, para. 8.7 at p. 229; Mark R.
MacGuigan, “Precedent and Policy in the Supreme Court” (1967), 45 Can. Bar Rev. 627 at p. 639.
149
Bruce v. Waldron [1963] V.R. 3 at p. 7 (Sup. Ct. of Vict. 1962): “By the established rules of judicial
precedent, decisions of the Privy Council, as the ultimate court of appeal in the hierarchy to which our
courts belong, have a direct binding authority in our courts which does not attach to the decisions of any
other judicial tribunal.”; Christie v. Ford (1957) 2 F.L.R. 202 at p. 208 (Sup. Ct. of N.T. 1957): “In the
Northern Territory the decisions of the Privy Council are absolutely binding.”
150
See, H.E. Renfree, The Federal Judicial System of Australia, Legal Books, Sydney, 1984, at p. 138;
L.V. Prott, “Refusing to Follow Precedents: Rebellious Lower Courts and the Fading Comity Doctrine”
(1977), 51 Australian L.J. 288; R.S. Geddes, “The Authority of Privy Council Decisions in Australian
Courts” (1978) 9 Fed. L.R. 427.
151
[1927] A.C. 515 at p. 519, [1927] 2 D.L.R. 97 at p. 100 (P.C.) (Viscount Dunedin delivered the
judgment of the Committee): “When an appellate Court in a colony which is regulated by English law
differs from an appellate court in England it is not right to assume that the colonial Court is wrong. It is
otherwise if the authority in England is that of the House of Lords. That is the supreme tribunal to settle
English law and that being settled, the colonial Court which is bound by English law is bound to follow it.”
See also Hogg, op. cit., para. 8.7 at p. 229, note 102, and Zelman Cowen, “The binding effect of English
decisions upon Australian courts” (1944) 60 L. Q. R. 378 et seq. (One should note that before 1927, when
the Privy Council in the Robins case held that colonial appellate courts were not bound by the English
Court of Appeal, it had been the rule, on the authority of Trimble v. Hill (1879) 5 App. Case 349 (P.C.),
that it was the duty of all colonial courts to follow the decisions of the Court of Appeal of England. (See
generally Mark R. MacGuigan, “Precedent and Policy in the Supreme Court” (1967) 45 Can. Bar Rev. 626
at p. 638 et seq.). Today, ex-colonial courts, such as those in Australia or in Canada, are no longer bound
by decisions from the House of Lords. As was acknowledged by Gibbs J. in Viro v. R. (1978) 18 A.L.R.
257 at p. 282, (1978) 141 C.L.R. 88 at p. 121 (High C. of Aust.): “We no longer treat ourselves as bound by
the decisions of the House of Lords, but we nevertheless continue to recognize “their peculiarly high
persuasive value”: Skelton v. Collins (1966) 115 C.L.R. 94 at 104; [1966] A.L.R. 449.” See Snell &
Vaughan, The Supreme Court of Canada: History of the Institution, University of Toronto Press, Toronto,
1985, at p. 239: “The Supreme Court of Canada justices continue to grant special deference to the senior
appellate tribunal in the common-law world”. It is not clear when the decisions of the House of Lords
passed from the area of the binding, to merely persuasive, authority. It is probably a phenomenon closely
linked with the abolition of appeals to the Privy Council: e.g. in two Australian cases decided prior to the
Privy Council (Appeals from the High Court) Act 1975 (Bruce v. Waldron [1963] V.R. 3 (Sup. Ct. of Vict.
1962) and Christie v. Ford [1957] 2 F.L.R. 202 (Sup. Ct. N.T. 1957)), the courts acknowledged the fact
that decisions of the House of Lords were binding upon them. In the 1978 case of Viro v. R. (1978) 18
A.L.R. 257, (1978) 141 C.L.R. 88, however, the High Court came to the opposite conclusion. For a detailed
discussion of this particular issue as to Canada, see: Andrew Joanes, “Stare decisis in the Supreme Court of
Canada” (1958) 36 Can. Bar Rev. 174 at p. 195 et seq.
 34

various dominions and colonies of the British Empire. However, where there is a direct
conflict between a decision of the Privy Council and a decision of the House of Lords,
colonial and dominion courts are required by the established rules of judicial precedent to
follow the decision of the Privy Council.152

ii) Binding upon all other jurisdictions from which an appeal to the Privy
Council lies

Decisions of the Privy Council are in theory binding upon all courts within its
jurisdiction and not just courts of the territory whence the particular appeal came.153
Thus, Gibbs J. declared, in Viro v. R.,154 that:

“... once the Privy Council decided a question of general law, without indicating
that it was laying down a principle peculiar to the dominion, colony or other State
from which the appeal was brought, its decisions were binding upon all courts
from which an appeal lay to the Privy Council. That seems to have been held by
the Privy Council itself in Fatuma Binti Mohamed Bin Salim Bakhshuwen v.
Mohamed Bin Salim Bakhshuwen, [1952] A.C. 1 at 14 and by this court in Morris
v. English, Scottish and Australian Bank Ltd. (1957), 97 C.L.R. 624. Those
authorities were discussed in Mayer v. Coe (1968), 88 W.N. (Pt 1) (NSW) 549 at
555 and Ratcliffe v. Watters (1969), 89 WN (Pt 1) (NSW) 497 at 503-4, and it was
held that the Supreme Court of New South Wales should follow a decision of the
Privy Council given on appeal from an earlier decision of this court.”

c) After abolition

i) Status of previously binding decisions

The Privy Council was never bound, as we have already seen, by its prior
decisions. After its accession to final appellate status, the Supreme Court of Canada felt,

152
In re Rayner [1948] N.Z.L.R. 455 at p. 501 (N.Z. C.A. 1947): “... the Court of Appeal in New Zealand
should follow the judgments of that House [the House of Lords] unless there is a judgment of the Privy
Council to the contrary, which, in the present relation, there is not.” See also Christie v. Ford [1957] 2
F.L.R. 202 at p. 208 (Sup. Ct. N.T. 1957) and Bruce v. Waldron [1963] V.R. 3 at p. 7 (Sup. Ct. of Vict.
1962).
153
Blom-Cooper and Drewry, op. cit., at p. 77. In Negro v. Pietro's Bread Co. [1933] 1 D.L.R. 491 at pp.
494-496, the Ontario Court of Appeal refused to follow Victorian Rys. Com'rs v. Coultas 13 App. Cas. 222,
a Privy Council judgment in an Australian appeal, on the basis that the Coultas case, so adversely
criticized, stood alone and was out of harmony with the whole trend of English cases. Middleton, J.A. who
delivered the judgment for the Ontario Court of Appeal acknowledged the fact that he was “very bold” in
reaching that conclusion. Commenting on the Negro case, Gibbs J., in Viro v. R. (1978) 18 A.L.R. 257 at p.
281, (1978) 141 C.L.R. 88 at p. 118 (High C. of Aust.), said: “At that time the notion that a decision of the
Privy Council on appeal from Australia was not binding in Canada was heretical.”
154
Ibid., A.L.R. at p. 281, C.L.R. at p. 119. See also the comments of Mason J. at p. 295. An important case
on the subject, not cited by the High Court, is Robins v. National Trust Co. [1927] A.C. 515 at p. 517,
[1927] 2 D.L.R. 97 at pp. 98-99 (P.C.).
 35

because it had now all the power of the Privy Council155 that it should equally not be
bound to follow the prior decisions of the Committee.156

Thus in 1978, in the case of Re Agricultural Products Marketing Act,157 the

Supreme Court refused to follow a Privy Council precedent, as it did again in 1987 in Re
Bill 30 (Ont. Separate School Funding).158

The rule is the same in Australia. Barwick C.J. speaking for the High Court
159
said:

“I am of opinion that this court is no longer bound by decisions of the Privy

Council whether or not they are given before or after the date when the Privy
Council (Appeals from the High Court) Act 1975 became effective.”

ii) Persuasive value of Privy Council decisions from other jurisdictions

Once the right to appeal to the Privy Council has been terminated in a country, it
is obvious that the judgments of the Committee arising out of decisions rendered on
appeals from other jurisdictions, will not be binding on the courts of the country where
the right of appeal no longer exists. While no longer binding, the decisions of the Privy
Council will nonetheless still be regarded as “highly persuasive”160 and treated, as in the
case of decisions of the House of Lords, “with the respect properly due to tribunals of
that calibre”.161

VII. Particular Principles of Interpretation of the Rules

Leaving aside the standard rules of interpretation of statutes, the following are
eleven general principles of construction applicable to the Hague and Hague/Visby
Rules as gleaned from judgments.

1) Actual wording - rather than previous law

155
Reference re The Farm Products Marketing Act of Ontario [1957] S.C.R. 198 at p. 212 (per Rand J.):
“The powers of this court in the exercise of its jurisdiction are no less in scope than those formerly
exercised in relation to Canada by the Judicial Committee.”
156
Hogg, op. cit., para. 8.7 at p. 230.
157
[1978] 2 S.C.R. 1198 at pp. 1234 and 1291. See Hogg, op. cit., para. 8.7 at p. 230, note 105.
And J. David Murphy and R. Rueter, Stare Decisis in Commonwealth Appellate Courts, Butterworths,
Toronto, 1981, at pp. 23-24.
158
[1987] 1 S.C.R. 1148 at pp. 1190-1196; Hogg, op. cit., para. 8.7 at p. 230.
159
Viro v. R. (1978) 18 A.L.R. 257 at p. 260, (1978) 141 C.L.R. 88 at p. 93 (High C. of Aust.). An identical
conclusion was reached in South Africa in Fellner v. Minister of the Interior [1954] 4 S.A.L.R. 523 at p.
530, where the Chief Justice of the Appellate Division of the Supreme Court said: “At one time the Privy
Council was our final court. It was not bound by its own decisions ... And now, the Appellate Division,
being the final Court of Appeal in respect of appeals from courts in the Union, has the power which the
Privy Council had, of departing from an erroneous decision of the Privy Council.”
160
Viro v. R. (1978) 18 A.L.R. 257 at p. 282, (1978) 141 C.L.R. 88 at p. 121 (High C. of Aust.).
161
Ibid., A.L.R.at p. 325, C.L.R. at p. 174.
 36

The first principle of construction is that the actual wording of the Rules should
be of paramount importance, while the use of previous law, i.e. statutes and judgments,
should be limited and relied upon only with great circumspection.162 This rule appears in
Stag Line Ltd. v. Foscolo, Mango & Co.,163 where Lord Atkin, after referring to the
well-known words of Lord Herschell in the Bank of England v. Vagliano Brothers,164
stressed the importance for the Courts to consider “... only the words used without any
predilection for the former law ....”165

The United States Supreme Court has held that:166 “Our interpretation must begin,
as always, with the text of the Conventions.” In the specific context of international law
on the carriage of goods by sea, the House of Lords has held:167 “ One is therefore
remitted to the language of the relevant parts of the Hague Rules as the authoritative
guide to the intention of the framers of the Hague Rules.”

2) International rather than domestic construction

The second principle of construction of the Rules is that, since they are an
international agreement 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.

For example, Lord Atkin in Stag Line Ltd. v. Foscolo, Mango & Co.168 said:

162
See Transworld Oil (USA) Inc. v. Minos Compania Naviera (The Leni) [1992] 2 Lloyd’s Rep. 48 at p.
53: “I would have thought it right to have regard to the manner in which art.III, r.6 is formulated.” See also
Great China Metal Industries Co. Ltd. v. Malaysian International Shipping Corp. Berhad (The Bunga
Seroja) (1998) 158 A.L.R. 1 at p. 19, [1999] 1 Lloyd’s Rep. 512 at p. 523, 1999 AMC 429 at p. 450 (High
C. of Aust. per McHugh, J.): “Primacy must be given, however, to the natural meaning of the words in their
context,….”
163
[1932] A.C. 328, (1931) 41 Ll. L. Rep. 165 (H.L.).
164
[1891] A.C. 107 at pp. 144-145. See sect. IV of this Chapter, supra.
165
Supra, [1932] A.C. at p. 343; (1931) 41 Ll. L. Rep. at p. 171. See also Phoenix Marine Inc. v. China
Ocean Shipping Co. [1999] 1 Lloyd’s Rep. 682 at p. 686, where Moore-Bick J. cited the similar rule of
art. 9 of Panama’s Civil Code: (translation): “When the sense of a rule of law is clear its literal text
cannot be disregarded with the pretext to consult its spirit. However, for the interpretation of an obscure
expression of Law, the interpreter may refer to the intent or spirit that can be consulted through the Law
or its history clearly manifested within the Law or in the genuine history of its creation.”
166
See Itel Containers International Corp. v. Joe Huddleston, Commissioner of Revenue of Tenesse 113
S.Ct. 1095 at p. 1099, 1993 AMC 2318 at p. 2321 (1993). See also Griffin v. Oceanic Contractors, Inc.
458 U.S. 564 at p. 571 (1982): “There is, of course, no more persuasive evidence of the purpose of a statute
than the words by which the legislature undertook to give expression to its wishes.” See also Air France v.
Saks 470 U.S. 392 at pp. 396-397 (1985): The analysis must begin, however, with the text of the treaty and
the context in which the written words are used.” The plain meaning was the first approach used by the
Second Circuit in interpreting COGSA, sect. 4(6) (46 U.S.C. Appx. 1304(6)) in Senator Linie GmbH & Co.
KG v. Ssunway Line, Inc. 291 F.3d 145 at pp. 154-158, 2002 AMC 1217 at pp. 1226-12312 (2 Cir. 2002).
167
See Effort Shipping Co Ltd. v. Linden Management SA (The Giannis N. K.) [1998] A.C. 605 at p. 622,
[1998] 1 Lloyd’s Rep. 337 at p. 347, 1998 AMC 1050 at p. 1065 (H.L. per Lord Steyn).
168
Stag Line Ltd. v. Foscolo, Mango & Co. [1932] A.C. 328 at pp. 342-343, [1931] 41 Ll. L. Rep. 165 at
p. 171 (H.L.).
 37

“It will be remembered that the Act only applies to contracts of carriage of goods
outwards from ports of the United Kingdom: and the Rules will often have to be
interpreted in the courts of the foreign consignees. For the purpose of uniformity it
is, therefore, important that the Courts should apply themselves to the
consideration only of the words used without any predilection for the former law,
always preserving the right to say that words used in the English language which
have already in the particular context received judicial interpretation may be
presumed to be used in the sense already judicially imputed to them.”

The principle was reiterated by Lord Macmillan in the same judgment in an even
more celebrated statement:169

“It is important to remember that the Act of 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.”

Lord Macmillan’s statement has been relied on heavily in many important

cases. In Maxine Footwear Co. v. Canadian Government Merchant Marine Ltd.,171 the
170

noble Lord was cited by the Privy Council, which went on to discard the old doctrine of
stages of seaworthiness. The opinion was also referred to in Riverstone Meat Co. Pty.
Ltd. v. Lancashire Shipping Co. (The Muncaster Castle),172 where the House of Lords
held that due diligence to provide a seaworthy vessel required more than appointing
qualified experts to do the job. In The Anglo-Indian,173 the Supreme Court of Canada
relied on Lord Macmillan to apply the Canadian version of the Rules, while disregarding
the Vita Food174 decision of the Privy Council as having no bearing on the issue at
hand.175 More recently, the words of Lord Macmillan were recalled by the English Court

169
Ibid., A.C. at p. 350, Ll. L. Rep. at p. 174.
170
The point made in Stag Line Ltd. by Lord Macmillan is pertinent when interpreting any international
convention, not only the Hague Rules. This can be seen, for example, in Buchanan & Co. v. Babco Ltd.,
[1978] A.C. 141, [1978] 1 Lloyd’s Rep. 119 (H.L.), a decision dealing with the CMR Convention on Road
Transport, and Fothergill v. Monarch Airlines, [1981] A.C. 251, [1980] 2 Lloyd’s Rep. 295 (H.L.), a
Warsaw Convention decision, where Lord Macmillan’s celebrated dictum was referred to by the House of
Lords.
171
[1959] A.C. 589 at p. 603, [1959] 2 Lloyd’s Rep. 105 at p. 113 (P.C.).
172
[1961] A.C. 807 at 874, [1961] 1 Lloyd's Rep. 57 at p. 88, 1961 AMC 1357 at p.
1400 (H.L.).
173
Dominion Glass Co. Ltd. v. The Anglo Indian [1944] S.C.R. 409 at p. 420, 1944 AMC 1407 at p. 1418.
174
Vita Food Products Inc. v. Unus Shipping Co. (Hurry On) [1939] A.C. 277, (1939)
63 Ll. L. Rep. 21, 1939 AMC 257 (P.C.).
175
See also the Great China Metal Industries Co. Ltd. v. Malaysian International Shipping Corp. (The
Bunga Seroja) (1998) 158 A.L.R. 1 at p. 41, [1999] 1 Lloyd’s Rep. 512 at p. 536, [1999] AMC 427 at p.
481 (High C. of Aust.): “In construing a text such as the Hague Rules, this Court, to the greatest extent
possible, should prefer the construction which is most consistent with that which has attracted general
international support rather than one which represents only a local or minority opinion”.
 38

of Appeal in The Rafaela S,176 prompting Lord Justice Rix to examine in detail not only
the statements made by representatives of national delegations at the conferences of 1922
and 1923 leading up to the adoption of the Hague Rules in 1924 on the question of
whether “straight” bills of lading were intended to be covered by the Rules,177 but also
the more recent decisions on the same point reached by courts in the Netherlands, Hong
Kong, Singapore and France, as well as England.178

Lord Macmillan’s 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-Maatschappij179 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.,180 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.

Courts in different parts of the Commonwealth have made similar

pronouncements. In Australia, for example, the High Court, in Shipping Corp. of India
Ltd. v. Gamlen Chemical Co. (Australasia) Pty. Ltd., reaffirmed that:181

“It has been recognized that a national court, in the interests of uniformity,
should construe rules formulated by an international convention,
especially rules formulated for the purpose of governing international
transactions such as the carriage of goods by sea, ‘in a normal manner,
appropriate for the interpretation of an international convention,
unconstrained by technical rules of English law, or by English legal
precedent, but on broad principles of general acceptation’, to repeat the
words of Lord Wilberforce in James Buchanan & Co. Ltd. v. Babco
Forwarding & Shipping (UK) Ltd. [citation omitted]; see also Stag Line
Ltd. v. Foscolo, Mango & Co. Ltd. [citation omitted].”

176
[2003] 2 Lloyd’s Rep. 113 at p. 126, 2003 AMC 2035 at p. 2059 (C.A.). See also Morris v. KLM Royal
Dutch Airlines [2002] 2 A.C. 628 at p. 656 (H.L.); The Kapitan Petko Voivoda [2003] 2 Lloyd’s Rep. 1 at
p. 12 (C.A.); CMA CGC S.A. v. Classica Shipping Co. Ltd. [2004] 1 Lloyd's Rep. 460 at p. 463 (C.A.).
177
[2003] 2 Lloyd’s Rep. 113 at pp. 126-130, 2003 AMC 2035 at pp. 2059-2067 (C.A.).
178
Ibid., Lloyd’s Rep. at pp. 134-139, AMC at pp. 2075-2085.
179
249 Cal. App.2d 880 at p. 889, 1967 AMC 2440 at p. 2448 (Cal. App. 1967), cert. denied, 389 U.S. 931
(1967).
180
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).
181
(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 Lloyd’s
Rep. 512 at p. 543 (High C. of Aust. per Callinan, J.). See also Ryoden Machinery Co. Ltd. v. Owners of
the Ship Anders Maersk [1986] 1 Lloyd’s Rep. 483 at p. 485, 1986 AMC 1269 at p. 1272 (Hong Kong
High C. (Adm.)); El Greco (Australia) Pty. Ltd. v. Mediterranean Shipping Co. [2004] 2 Lloyd's Rep. 537
at p. 559, 2004 AMC 2886 at p. 2923 (Fed. C. Aust., Full Court).
 39

Mason and Wilson, JJ. went on to say that the meaning of words and terms used
in a convention might be elucidated to some extent by the consistent meaning assigned to
them in previous domestic law, but warned that interpretation of new international rules
should not become deformed by the construction of their forerunners under such
“municipal law”:182

“There is a high probability that when such words and expressions have
been incorporated in a convention, they have been incorporated with
knowledge of the meaning which has been given to them by national
courts. Nor do the principles of interpretation of an international
convention exclude recourse to the antecedent municipal law of nations
for the pupose of elucidating the meaning and effect of the convention and
the new rules which it introduces. It would be extremely difficult to
interpret the new rules as if they existed in a vacuum without taking into
account antecedent municipal law and the problems which its application
generated. However, in resorting to antecedent municipal law we need to
recollect that it is the language of the Hague Rules that we are
expounding, the antecedent law providing a background for that
exposition by enabling us more readily to gauge the sense and direction of
the new rules which the convention introduces.” (Emphasis added)

In Great China Metal Industries Co. Ltd. v. Malaysian International Shipping

Corp. Berhad (The Bunga Seroja), the High Court of Australia (per Kirby, J.) stated
plainly that:183

“The approach of this Court to the construction of an international legal

regime such as that found in the Hague Rules must conform to settled
principle. Reflecting on the history and purposes of the Hague Rules, the
Court should strive, so far as possible, to adopt for Australian cases an
interpretation which conforms to any uniform understanding of the rules
found in the decisions of the courts of other trading countries. It would be
deplorable if the hard won advantages of international uniformity, secured
by the Rules, were undone by serious disagreements between different
national courts.”184

182
(1980) 147 C.L.R. at pp. 159-160, 32 A.L.R. at pp. 618-619. For an example of how the “antecedent
municipal law” of both the United States and the United Kingdom dating from before the adoption of the
Hague Rules and COGSA was carefully examined, but not permitted to control, the Court’s ultimate
decision that the shipper should be held strictly liable under COGSA for loading inherently dangerous
goods, even where he lacked actual or constructive knowledge of the danger before shipment, see Senator
Linie GmbH v. Sunway Line, Inc. 291 F.3d 145 at pp. 161-166, 2002 AMC 1217 at pp. 1236-1240 (2 Cir.
2002).
183
(1998) 158 A.L.R. 1 at p. 40, [1999] 1 Lloyd’s Rep. 512 at p. 536, 1999 AMC 427 at p. 450 (High C. of
Aust.). Unfortunately, however, the Australian High Court in this decision did not support the general,
international interpretation of the peril of the sea defence of the carrier of art. 4(2)(c) of the Hague and
Hague/Visby Rules. See Chap. 18, “Peril of the Sea and Similar Exceptions”, infra.
184
See also El Greco (Australia) Pty. Ltd. v. Mediterranean Shipping Co. [2004] 2 Lloyd's Rep. 537 at p.
559, 2004 AMC 2886 at p. 2923 (Fed. C. Aust., full Court): "Subject to any contrary intention revealed by
the domestic statute making an international instrument part of domestic law, the ascertainment of the
 40

3) The principle of standardization

Similar, but not identical, to the principle of international construction enunciated

above is the principle of standardization; that is, the Rules must be construed so as to
encourage standard and common rules of transport throughout the world.

Uniformity of law enables the shipper who ships goods anywhere in the world to
know the risks he is taking and the rights he possesses. Uniformity of law enables the
carrier to know his rights and responsibilities no matter which port his vessel enters. The
bill of lading, being a receipt for cargo, a contract of carriage and a document of title, and
therefore an instrument of integrity, should have the same meaning no matter where it is
issued.185

This principle was enunciated by Viscount Simonds in Riverstone Meat Co. Pty.
v. Lancashire Shipping Co. (The Muncaster Castle):186

“The Hague Rules, as is well known, were the result of the Conference on
Maritime Law held at Brussels in 1922 and 1923. Their aim was broadly to
standardize within certain limits the rights of every holder of a bill of lading
against the shipowner, prescribing an irreducible minimum for the
responsibilities and liabilities to be undertaken by the latter.”

We also find a reference to the uniform nature of the rules in The Asturias:187
“The purpose of the Act is to create international uniformity.”

Similarly, in The Bunga Seroja, Kirby J. of the High Court of Australia, stated:188
“International treaties should be interpreted uniformly by the contracting States,
especially in the case of treaties such as the Hague Rules whose aim is to harmonise and

meaning of, and obligations within, an international instrument that is made part of domestic law is to be
ascertained by giving primacy to the text of the international instrument, but also by considering the
context, objects asnd purposes of the instrument."
185
The importance of interpreting bills of lading and related documents, such as Himalaya clauses, to
conform to world trade practices was acknowledged by the Supreme Court of Canada in the Buenos Aires
Maru, [1986] 1 S.C.R. 752 at pp. 788-789, 1986 AMC 2580 at p. 2609:
“In admiralty or marine cases we are dealing with international commerce. There is
sound reason to promote uniformity in this field and as great a degree of certainty as may
be possible. In the ordinary course of commerce, carriers, stevedores and terminal
operators have established practices which are widely followed and generally understood
by all concerned. Bills of lading and stevedoring contracts are made in many languages
frequently involving different rules and conditions and all must be made operative in the
general practice of marine transportation. 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.”
186
[1961] A.C. 807 at p. 836, [1961] 1 Lloyd’s Rep. 57 at p. 67, 1961 AMC 1357 at p. 1362 (H.L.).
187
40 F. Supp. 168 at p. 169,1941 AMC 761 at p. 762 (S.D. N.Y. 1941).
188
(1998) 158 A.L.R. 1 at p. 19, [1999] 1 Lloyd’s Rep. 512 at p. 523, [1999] AMC 427 at p. 450.
 41

unify the law in cases where differing rules previously applied in the contract States”.
The New South Wales Court of Appeal sounded the same note in Brown Boveri
(Australia) Pty. Ltd. v Baltic Shipping Co (The Nadezhda Krupskaya):189 “In such
circumstances, it is sensible that Australian Courts should endeavour, so far as possible,
to give the words in the Rules a construction which brings the results of litigation upon
them in Australia into harmony with the results reached elsewhere.”

The Second Circuit in the United States forcefully repeated the principle in
Senator Linie GmbH v. Sunway Line, Inc.190 In the face of uncertain American authority
on the point, that prestigious maritime court expressly chose to follow the decision of the
House of Lords in Effort Shipping Co. v. Linden Management S.A. (The Giannis N.
K.),191 and thus bring Second Circuit law into conformity with that of the U.K., by
holding that a shipper is strictly liable for damage to the ship resulting from shipping
inherently dangerous goods, even where neither the shipper nor the carrier had actual of
constructive preshipment knowledge of the cargo’s inherently dangerous nature. Citing
Granite State Ins. Co. v. M/V Caraibe,192 the Court held:193

“One important aspect of the international agreement [the Brussels

Convention 1924] and its United States counterpart [COGSA 1936] is the
standardization of liability expectations. In essence, the purpose of these
laws is to allow international maritime actors to operate with greater
efficiency under a mantle of fairness.”

Giving effect to such standardization, the Senator Linie decision concluded:194

“We note, furthermore, that in conforming our construction of COGSA

§1304(6) to that given to its British counterpart by the House of Lords in
Effort Shipping, we are furthering another broad purpose of COGSA and
the Hague Rules: international unformity in the law of carriage of goods
by sea. One point on which pre-1936 Second Circuit cases agreed
unanimously was that ‘in matters of commercial law our decisions should
conform to the English decisions, in the absence of some rule of public
policy which would forbid.’ [citations omitted]…. Today we reaffirm our
earlier decisions in recognizing the importance of international uniformity
in the laws governing the maritime trade.”

189
[1989] 1 Lloyd’s Rep. 518 at p. 521 (N.S.W.S.C. C.A.). See also Transworld Oil (USA) Inc. v. Minos
Compania Naviera (The Leni) [1992] 2 Lloyd’s Rep. 48 at p. 58.
190
291 F.3d 145, 2002 AMC 1217 (2 Cir. 2002).
191
[1998] A.C. 605, [1998] 1 Lloyd’s Rep. 337, 1998 AMC 1050 (H.L.).
192
825 F. Supp. 1113 at p. 1123, 1994 AMC 680 at p. 694 (D. P.R. 1993), which in turn was citing Gilmore
& Black, The Law of Admiralty, 2 Ed., Foundation Press, Mineola, N.Y., 1975 at pp. 143-144.
193
291 F.3d 145 at p. 158, 2002 AMC 1217 at p. 1232 (2 Cir. 2002).
194
Ibid., F.3d at pp. 169-170, AMC at pp. 1246-1247. The Federal Court of Canada also followed the
House of Lord’s Effort Shipping decision in Elders Grain Co. Ltd. v. M/V Ralph Misener 2003 AMC 1889
at pp. 1901-1903 (Fed. C. Can.).
 42

If the Hague and Hague/Visby Rules are to be effective and to achieve their
purpose, that is, uniformity in international carriage of goods by sea, it is essential that
courts bear in mind these three principles of interpretation when applying the Rules in
specific cases (plain meaning, international construction and standardization). Towards
this end, the history of carriage of goods by sea, the development of the Rules, and their
purpose must all be considered.

4) Reference to the history of the Rules

A study of the historical events which brought the Hague and Hague/Visby Rules
about is not only advisable, but at times necessary, in order to understand how one law
was built on another or how it answered a particular need of commerce. The perceived
limits of the Harter Act195 often explain the provisions of COGSA,196 just as the defects
in the Law of April 2, 1936197 of France brought about the Law of June 18, 1966.198
The disputed articles of the Hague Rules resulted in the Visby Rules.

An example of judicial reference to the history of the Rules is found in The

Muncaster Castle decision, where Viscount Simonds stated:199

“To ascertain [the] meaning [of the Hague Rules] it is, in my opinion,
necessary to pay particular regard to their history, origin and context, and,
as I think the courts below have not paid sufficient regard to this aspect of
the case, I must deal with it at some length.”

Viscount Simonds then followed with reference to the Brussels Conferences of

1922 and 1923, the United States Harter Act of 1893,200 the Australian Sea-Carriage of
Goods Act of 1904,201 and the Canadian Water Carriage of Goods Act of 1910.202 A
further example of the use of legislative history in the U.K. is found in The Sandrina.203
There, the House of Lords, in interpreting the U.K. Administration of Justice Act,
1956,204 reviewed the debates at the Comité Maritime International conference in Naples,

195
46 U.S. Code Appx. 190-196 (1893).
196
46 U.S. Code Appx. 1300-1315 (1936).
197
Law of April 2, 1936.
198
Law No. 66-420 of June 18, 1966.
199
[1961] A.C. 807 at p. 836, [1961] 1 Lloyd’s Rep. 57 at p. 67, 1961 AMC 1357 at p. 1362. See also
Shipping Corp. of India Ltd. v. Gamlen Chemical Co. (Australasia) Pty. Ltd. (1980) 147 C.L.R. 142 at pp.
158-159, (1980) 32 A.L.R. 609 at p. 618 (High C. of Aust.); El Greco (Australia) Pty. Ltd. v.
Mediterranean Shipping Co. [2004] 2 Lloyd's Rep. 537 at p. 560, 2004 AMC 2886 at p. 2924 (Fed. C.
Aust., Full Court): "Further, just as the historical legal context is relevant to the understanding of the
meaning of a domestic statute under municipal law: [citations omitted], so it is relevant, within the
boundaries of the Vienna Convention, to understanding the context and compromises behind international
agreements."
200
46 U.S.C. Appx. 190-196.
201
No. 14 of 1904.
202
9 & 10 Edw. 7, c. 61.
203
Gatoil International Inc. v. Arkwright-Boston Manufacturers Mutual Insurance Co. and Others (The
Sandrina), [1985] A.C. 255 at pp. 263-265, [1985] 1 Lloyd’s Rep. 181 at pp. 183-184 (H.L.).
204
U.K. 4 & 5 Eliz. 2, c. 46.
 43

1951, held in preparation for the 1952 Brussels Diplomatic Conference. In particular, the
positions of the Dutch, British and French delegations were considered.

Following a similar path, Lord Justice Rix, in The Rafaela S., devoted several
pages of his speech to a review of certain statements made by representatives of different
countries at the 1922 and 1923 conferences preceding the adoption of the Hague Rules in
1924, in order to cast light on the long contentious point as to whether “straight” (i.e.
nominative) bills of lading were intended by the drafters of that convention to be subject
to its provisions.205

Similarly, the Federal Court of Australia (Full Court), in El Greco (Australia) Pty.
Ltd. v. Mediterranean Shipping Co.,206 made extensive reference to the deliberations of
the conferences of the 1920's and the 1960's that led to the adoption of the Hague and the
Hague/Visby Rules respectively, in its exhaustive discussion of the package and
package/kilo limitations of carrier liability in respect of containerized goods.207

Judges are prudent, however, in considering legislative history. Lord Wilberforce,

in The Sandrina, argued for acceptance, but cautious use, of travaux préparatoires in aid
of the interpretation of conventions or treaties of private law.208 He relied on previous
comments he himself had made in Fothergill v. Monarch Airlines Ltd.,209 a Warsaw
Convention210 case, where he suggested that two conditions must be fulfilled before such
documents can be used: first, that the material is public and accessible; secondly, that it
clearly and indisputably points to a definite legislative intention.211

The Scottish Court of Session reiterated this cautious approach in 1997 in

Landcatch Ltd. v. IOPCF, a marine oil pollution case, where Lord Gill held:212

“The first task for the court in interpreting the relevant provisions is to
look to the sections themselves. The Court should start from the
assumption that Parliament has accurately implemented the treaty
obligations set out in the relevant Conventions. The sections should
therefore be construed in the first instance without reference to the
Conventions or other related sources such as travaux preparatoires. If the

205
[2003] 2 Lloyd’s Rep. 113 at pp. 126-130. See also The Jordan II [2003] 2 Lloyd’s Rep. 87 at pp. 97-99
(C.A.), upheld [2005] 1 All E.R. 175 (H.L.), studying the travaux préparatoires of the Hague Rules in an
effort to decide whether art. 3(2) of those Rules was intended to require the carrier to properly and carefully
load, stow and discharge cargo, or whether he was free to contract some or all of those operations to the
shipper or consignee.
206
[2004] 2 Lloyd's Rep. 537, 2004 AMC 2886 (Fed. C. Aust. Full Court).
207
Ibid., Lloyd's Rep. at pp. 561-576, AMC at pp. 2926-2958.
208
Supra, [1985] A.C. at p. 263, [1985] 1 Lloyd’s Rep. at p. 183.
209
[1981] A.C. 251 at p. 276, [1980] 2 Lloyd’s Rep. 295 at p. 301 (H.L.).
210
Convention for the Unification of Certain Rules Relating to International Transportation by Air, adopted
at Warsaw, October 12, 1929, ICAO Doc. 9201, 49 Stat. 3000, T.S. No. 876 (1934), note following 49
U.S.C. 40105.
211
This second point was reiterated by the House of Lords in The Jordan II [2005] 1 All E.R. 175 at p.
___at para. 20 (H.L.).
212
[1998] 2 Lloyd’s Rep. 552 at pp. 566-567 (Sc. Ct. of Session).
 44

sections disclose a clear-cut meaning, then that is the meaning that they
should be given, whether or not that meaning is at odds with the assumed
purpose of the Convention.”
“It is only if the statutory provisions are obscure or ambiguous that there is
any need to resort to the Conventions themselves, or to any other
secondary sources, as an aid to construction (Salomon v. CEC [1967] 2
Q.B. 116 (C.A. per Diplock, LJ at pp. 143-144). At that point, it becomes
a matter for the court as to the weight to be given to the various secondary
sources of assistance in the interpretation of the statutory provisions (cf.
Fothergill v. Monarch Airlines [1981] A.C. 251 at p. 295 (Lord Scarman
at p. 295C) . I understood Counsel for the pursuers to agree that this is the
correct approach.”

Despite these recent decisions by the House of Lords and Court of Session, it is
generally not the practice in British Commonwealth jurisdictions to look at statements
made in Parliament regarding the purpose or scope of a legislative act.213 There is,

213
In Fothergill v. Monarch Airlines, [1981] A.C. 251 at p. 276, [1980] 2 Lloyd’s Rep. 295 at p. 301
(H.L.), Lord Wilberforce reviewed the scarce jurisprudential support for the use of travaux préparatoires
in interpreting an international statute:
“There is little firm authority in English law supporting the use of travaux préparatoires
in the interpretation of treaties or conventions. The passage usually cited in support of
such use is from the judgment of Lord Reading C.J. in Porter v. Freudenberg, [1915] 1
K.B. 857, 876 when reference was made to statements made in a committee of the
conference which prepared the Hague convention of 1907 upon the Laws and Customs of
War on Land. The judgment contains no reasoning in support of this approach, and the
case was decided upon the wording of the relevant article in its context in preference to
the (inconsistent) statements. There is a passing reference to travaux préparatoires in
relation to an international convention in Post Office v. Estuary Radio Ltd., [1968] 2 Q.B.
740, per Diplock L.J., at p. 761, but even this is tentatively expressed.”
Viscount Dilhorne, in Buchanan & Co. v. Babco Ltd. [1978] A.C. 141 at p. 157, [1978] 1 Lloyd’s
Rep. 119 at p. 125 (H.L.), relied on such antiquated authority as Coke’s Institutes to support the
use of travaux préparatoires:
“In construing the terms of a convention it is proper and indeed right, in my opinion, to
have regard to the fact that conventions are apt to be more loosely worded than Acts of
Parliament. To construe a convention as strictly as an Act may indeed lead to a wrong
interpretation being given to it. In construing a convention as in construing an Act where
the language used is capable of two interpretations one must seek to give effect to the
intentions of those who made it. (Coke 4 Inst. 330).”
The author, who spent eight years in a legislative assembly both on the opposition benches and in the
government, appreciates the traditional British position of ignoring the travaux préparatoires or the
legislative history (as it is called in the United States). This is because politicians sometimes give one
reason publicly for presenting or supporting a statute but actually are motivated by other important, valid
considerations which they do not believe it is politic to reveal at that moment or ever. This is why the
delegates to the Constitutional Convention meeting in Philadelphia in 1787, expressly banned any verbatim
minutes of their debates. It is therefore advisable to view parliamentary debates with circumspection when
interpreting a statute itself. See also Gosselin v. Ross (1902-03) 33 S.C.R. 255 at p. 264 et seq. and Assam
Rly. v. Commissioners of Inland Revenue [1935] A.C. 445 at p. 457 et seq. (H.L.). On the other hand,
travaux préparatoires of committees of parliaments, congresses, assemblies and diplomatic working
groups, where the text of the statute, convention or protocol is discussed in the presence of, and by, civil
servants, are especially reliable and useful. Thus, United Nations organizations publish complete accounts
of travaux préparatoires, which can be very revealing and helpful.
 45

however, some willingness to consider travaux préparatoires in construing international

conventions,214 although the need for caution in doing so is often mentioned.215 Lord
Steyn, reaffirming Lord Wilberforce’s position in Fothergill, marked the parameters of
reliance on travaux préparatoires in Effort Shipping Co. Ltd. v. Linden Management S.A.
(The Giannis N.K.):216

“Although the text of a convention must be accorded primacy in matters of

interpretation, it is well settled that the travaux préparatoires of an
international convention may be used as ‘supplementary means of
interpretation:’ compare article 31 of the Vienna Convention on the Law
of Treaties, Vienna, 23 May 1969. Following Fothergill v. Monarch
Airlines Ltd. [1981] A.C. 251, I would be quite prepared, in an appropriate
case involving truly feasible alternative interpretations of a convention, to
allow the evidence contained in the travaux préparatoires to be
determinative of the question of construction. But that is only possible
where the court is satisfied that the travaux préparatoires clearly and
indisputably point to a definite legal intention: see Fothergill v. Monarch
Airlines Ltd., per Lord Wilberforce, at p. 278C. Only a bull’s eye counts.
Nothing less will do.” 217

In the United States, on the other hand, courts often interpret a statute in the light
of comments made during the legislative debates.218 In regards to COGSA, the United

214
See Great China Metal Industries Co. Ltd. v. Malaysian International Shipping Corp. Berhad (The
Bunga Seroja) (1998) 158 A.L.R. 1, [1999] 1 Lloyd’s Rep 512, [1999] AMC 427, where the Australian
High Court stated, on the basis of legislative history, that: “… it seems likely that the English common law
rules provided the conceptual framework for the Hague Rules”. (A.L.R. at p. 20, Lloyd’s Rep. at p. 524,
AMC at p. 451). The travaux préparatoires were also given consideration (see A.L.R. at pp. 20, 38-40 and
54-55, Lloyd’s Rep. at pp. 523-524, 535-536 and 544-545, AMC at pp (per McHugh, J.). 451, 477-479 and
499-500). In Landcatch Ltd. v. IOPCF [1998] 2 Lloyd’s Rep. 552 at p.568, the Scottish Court of Session,
although acknowledging of the risks of doing so, nevertheless reviewed the travaux préparatoires of two
international conventions concerning liability and compensation for oil pollution damage, finding that those
travaux reinforced the conclusion that neither of those conventions provided pollution victims with any
claim for pure economic loss not directly connected with harm to their persons or damage to property
owned or possessed by them. See also King v. Bristow Helicopters Ltd. [2002] 2 Lloyd's Rep. 745 at pp.
750-752 (H.L.), where the travaux préparatoires of the Warsaw Convention 1929 were among the factors
taken into account in deciding that the Convention provided only for the air carrier’s liability for physical,
and not for mental, injury or illness sustained by airline passengers.
215
See, for example, El Greco (Australia) Pty. Ltd. v. Mediterranean Shipping Co. [2004] 2 Lloyd's Rep.
545 at p. 560, 2004 AMC 2886 at p. 2924, where Allsop J., speaking of the use of travaux préparatoires in
interpreting international conventions, cautioned: "Further, care must be taken not to accept too literally or
overwhelmingly any particular words by one delegate (however eminent he or she may be or have been)
without understanding the context of such words in the whole of the preparatory work and in the
circumstances of the conclusion of the relevant agreement."
216
[1998] A.C. 605 at p. 623, [1998] 1 Lloyd’s Rep. 337 at pp. 347-348, 1998 AMC 1050 at p. 1067 (H.L.).
217
The “bull’s-eye” metaphor has since been reiterated in other decisions involving interpretation of the
Hague or Hague/Visby Rules, including The Jordan II [2003] 2 Lloyd’s Rep. 87 at p. 97 (C.A.), upheld
(but without mentioning the "bull's eye"), [2005] 1 All E.R. 175 (H.L.) and The Rafaela S [2003] 2 Lloyd’s
Rep. 113 at p. 126, 2003 AMC 2035 at p. 2059 (C.A.).
218
See in general Day v. Trans World Airlines 528 F.2d 31 at p. 34 (2 Cir. 1975), cert. denied, 429 U.S.
890 (1976) and references therein.; Air France v. Saks 470 U.S. 392 (1985); TWA v. Franklin Mint 466
 46

States Supreme Court, when discussing the rights of stevedores in Herd & Co. Inc. v.
Krawill Machinery Corp.,219 declared:

“The legislative history of the Act shows that it was lifted almost bodily
from the Hague Rules of 1921, as amended by the Brussels Convention of
1924, 51 Stat. 233. The effect of those Rules was to establish uniform
ocean bills of lading to govern the rights and liabilities of carriers and
shippers inter se in international trade.”

The Court then followed with specific references to the congressional debates and
committee reports on COGSA.220

When ruling on an undecided question of law, the U.S. Courts of Appeals at times
resort to legislative history. For example in Comm. Trans. Internat. v. Lykes Bros.,221 the
U.S. Court of Appeals for the Second Circuit referred to the “legislative history” of
COGSA and to a statement of Senator White of Maine. Similarly, in Spanish American
Skin Co. v. M/S Ferngulf,222 the Second Circuit referred to the verbatim reports of the
House Committee hearings which discussed COGSA before its passage.

In Senator Linie GmbH. v. Sunway Line, Inc.,223 the legislative history of both the
Hague Rules 1921 and 1924 and of U.S. COGSA 1936 were reviewed by the Second
Circuit, in interpreting art. 4(6) of the Rules and the identically-worded provision of
COGSA (46 U.S.C. Appx. 1304(6)), resulting in the decision that the shipper’s liability
for loading inherently dangerous goods was strict and not “knowledge-based”.

In contrast, French courts almost never make reference to legislative history in

their decisions. Legislative reports and discussions, however, do form an essential part of
“la doctrine” and detailed information is published with the text of any law.224 The

U.S. 234 (1984). See also the Restatement (Third) of Foreign Relations Law, 1987 at sect. 325, comment
(g): “Courts in the United States are generally more willing than those of other states to look outside the
instrument to determine its meaning.” But see, however, Frankfurter J.’s cautionary remark, in “Some
Reflections on the Reading of Statutes” (1947) 47 Columbia L. Rev. 527 at p. 543, that “spurious use of
legislative history must not swallow the legislation so as to give point to the quip that only when legislative
history is doubtful do you go to the statute.” See In Re Prudential Lines, Inc. 69 B.R. 439 at p. 449 (Bkrtcy,
S.D.N.Y. 1987).
219
359 U.S. 297 at p. 301, 1959 AMC 879 at pp. 882-883, [1959] 1 Lloyd’s Rep. 305 at p. 308 (1959).
220
Ibid., U.S. at pp. 301-302, AMC at p. 883, Lloyd’s Rep. at p. 308.
221
243 F.2d 683 at p. 686, 1957 AMC 1188 at p. 1192 (2 Cir. 1957).
222
242 F.2d 551 at p. 554, 1957 AMC 611 at p. 614 (2 Cir. 1957). See also The Bill, 55 F. Supp. 780,1944
AMC 883 (D. Ma. 1944).
223
291 F.3d 145 at pp. 158-161, 2002 AMC 1217 at pp. 1231-1236 (2 Cir. 2002). In reviewing this
legislative background, the Court referred to Michael F. Sturley, ed., The Legislative History of the
Carriage of Goods by Seas Act and the Travaux Prépratoires of the Hague Rules, vol. 2, F.B. Rothman,
Littleton, Colorado, 1990. See F.3d at p. 159, note 18, AMC at p. 1233, note 18.
224
See the text accompanying the Law of April 2, 1936 published in Dalloz, Jurisprudence générale,
Recueil périodique et critique, 1937 at pp. 1-14. See also H. Capitant, Les Travaux préparatoires et
l’interprétation des lois, in Kahn-Freund, Lévy and Rudden, eds., A Source-book on French Law, 2 Ed.,
Clarendon Press, Oxford, 1979, at pp. 100-106 (omitted from 3 Ed., 1991), and Philippe Gérard, “Le
recours aux travaux préparatoires et la volonté du législateur”, in Michel van de Kerchove (ed.),
 47

travaux préparatoires are used to determine the “spirit” of a law, which is preferred
today as a method of interpretation to the older approach of minute, exegetical analysis of
the specific wording of enactments.225

5) Carrier/shipper compromise and balance

The Hague Rules were a compromise between carrier and shipper interests,226
designed to secure greater fairness as well as more uniform carriage of goods by sea law.
In this regard, Lord Steyn, in Effort Shipping Co. Ltd. v. Linden Management S.A.,
observed:227

“This much we know about the broad objective of the Hague Rules: it was
intended to reign in the unbridled freedom of contract of owners to impose
terms which were ‘so unreasonable and unjust in their terms as to exempt
from almost every conceivable risk and responsibility’; it aimed to achieve
this by a pragmatic compromise between interests of owners and shippers;
and the Hague Rules were designed to achieve a part harmonisation of the
diverse laws of trading nations at least in the areas which the Convention
covered.” [Emphasis added]

Concessions were made by both parties – in fact, almost all articles of the Rules
consist of compromises and a balancing. For example, carriers could no longer exclude or
lessen responsibility under the Rules, but were not responsible for more than £100
sterling per package or unit, or for error in the navigation or management of the ship.228
There is no absolute obligation to provide a seaworthy vessel; due diligence, however,
must be exercised to make the vessel seaworthy, but only before and at the beginning of
the voyage.229

Although this balancing must be taken into consideration in interpreting the

Rules, it does not mean that the Court must balance the equities of each case. Rather, the
court should attempt to find the historical balance established by the draftsmen of the
international convention.230

L’Interprétation en droit, Bruxelles, 1978, at pp. 51-95; D. Pollard, Sourcebook on French Law, 1997 at p.
xxiv. See also François Terré, Introduction générale au droit, Dalloz, Paris, 2000 at para. 470(a).
225
Nicole Guimezanes, Introduction au droit français, Nomos Verlagsgesellschaft, Baden-Baden, 1999 at
p. 31.
226
See, for e.g., Encyclopaedia Britannica v. Hong Kong Producer 422 F.2d 7 at p. 11, 1969 AMC 1741
at p. 1746, [1969] 2 Lloyd’s Rep. 536 at p. 539 (2 Cir. 1969); Mormaclynx (Leather's Best Inc. v. S.S.
Mormaclynx) 313 F. Supp. 1373 at p. 1381, 1970 AMC 1310 at p. 1323, [1970] 1 Lloyd’s Rep. 527 at p.
534 (E.D. N.Y. 1970), aff’d in pertinent part, rev’d in part, 451 F.2d 800, 1971 AMC 2383 (2 Cir. 1971).;
Varian Assocs. v. C. G. T., 85 Cal. App. 3d 369 at p. 375, 149 Cal. Rptr. 534 at pp. 538-539, 1980 AMC
450 at p. 456 (Cal. C.A. 1979). See also The Jordan II [2005] 1 All E.R. 175 at p. ___ at para. 19 (H.L.).
227
[1998] A.C. 605 at p. 621, [1998] 1 Lloyd’s Rep. 337 at p. 346, 1998 AMC 1050 at p. 1065 (H.L.).
228
Art. 4(5).
229
Art. 4(l).
230
For an example of this balancing, see Senator Linie GmbH. v. Sunway Line, Inc. 291 F.3d 145 at p. 169,
2002 AMC 1217 at pp. 1245-1246 (2 Cir. 2002), where the Second Circuit, in deciding to hold the shipper
strictly liable for loading dangerous goods, observed: “… we conclude today that a strict-liability
 48

The Visby Rules were an updating of the carrier/shipper balance with a slight list
towards shippers in the light of modern law on responsibility. The revisions, however,
were far too modest - the Hamburg Rules were the inevitable result.

6) Strict construction of the exceptions in the Rules

Exception provisions in statutes, like exception clauses in contracts, are to be

construed strictly. This general principle of statute and contract interpretation has almost
universal application. Thus, the exceptions in article 4(2) of the Hague and Hague/Visby
Rules must be applied restrictively.

Greer L.J., in his dissenting judgment in Gosse Millerd Ltd. v. Canadian

Government Merchant Marine Ltd.,231 stated his view that if the exception provisions of
article 4(2)(a) were interpreted in their widest sense they would “... in practice reduce to
very small dimensions the obligation carefully to handle, carry, keep and care for the
cargo ...” He went on to hold that “... a reasonable construction of the rules requires that a
narrower interpretation should be put on the excepting provisions of Art. IV (2)(a).”
Greer L.J.’s dissent was upheld on appeal to the House of Lords, which reversed the
majority opinions.232 Similarly, in Foreman & Ellams Ltd. v. Federal Steam Navigation
Co.,233 Wright J. said: “A negligence or exception clause in a statute, as in a contract,
ought, I think, to be strictly construed.”

The purpose of construing the exception provisions strictly is to preserve the

careful balance between carrier and shipper interests provided for in the Rules. As noted
by the court in The Mormaclynx (Leather’s Best Inc. v. S. S. Mormaclynx):234

“The Carriage of Goods by Sea Act represented a compromise between

the interests of carriers and shippers. It was intended to increase the
liability of carriers, and set a standard below which they could not go.”

Likewise, in Encyclopaedia Britannica v. Hong Kong Producer, it was held:235

construction of §1304(6) will foster fairness and efficiency in the dealings of commercial maritime actors.
In contrast to a carrier, which typically is in the position of taking aboard its vessel a large quantity and
variety of cargoes, a shipper can be expected to have greater access to and familiarity with goods and their
manufacturers before those goods are placed in maritime commerce. If an unwitting party must suffer, it
should be the one that is in a better position to ascertain ahead of time the dangerous nature of shipped
goods. That party in many cases will be the shipper.” The concern for balance is also very evident in
allocating the burden of proof in cargo claims. See, for example, Caemint Food v. Lloyd Brasileiro 647
F.2d 347 at p. 354, 1981 AMC 1801 at p. 1812 (2 Cir. 1981): “It is fair to impose on the plaintiff the
burden of showing the condition of packaged goods on delivery because the shipper has superior access to
information as to the condition of the goods when delivered to the carrier, just as the carrier has superior
access to information as to what happened thereafter.”
231
(1927) 29 Ll. L. Rep. 190 at p. 197, [1928] 1 K.B. 717 at p. 743 (C.A.).
232
[1929] A.C. 223, (1928) 32 Ll. L. Rep. 91 (H.L.).
233
[1928] 2 K.B. 424 at p. 439, (1928) 30 Ll. L. Rep. 52 at p. 59.
234
313 F. Supp. 1373 at p. 1381, 1970 AMC 1310 at p. 1323, [1970] 1 Lloyd’s Rep. 527 at p. 534 (E.D.
N.Y. 1970), aff’d in pertinent part, rev’d in part, 451 F.2d 800, 1971 AMC 2383 (2 Cir. 1971).
 49

“The purposes behind Harter, the Hague Rules and COGSA were to
achieve a fair balancing of the interests of the carrier, on the one hand, and
the shipper, on the other, and also to effectuate a standard and uniform set
of provisions for ocean bills of lading.”

The point was rephrased as follows in Vision Air Flight Service, Inc. v. M/V
National Pride:236 “Enacted in 1936, COGSA is a fault-based liability system that reflects
a compromise of rights and liabilities between cargo interests and carriers.”

It seems obvious that, unless the Rules are strictly construed along the lines set
forth above, the careful compromise worked out between carrier and shipping interests
will be defeated. This should be the uppermost consideration of courts when construing
the Rules.

7) Taking cognizance of new methods

A proper code, or even a well drafted statute, should be able to encompass and
regulate new advances of science and civilization unknown at the time the law was
adopted. Advances in the care of cargo and in the construction of ships result in new
standards by which the rights and responsibilities of carriers are judged. This principle
was clearly enunciated by the U.S. Court of Appeals in The Venice Maru.237 In 1934 the
carrier used rice ventilators to protect a shipment of sardine meal. The ventilation,
commonly used at that time, was the cause of a fire. It was the best known system then,
however, and although by the time of the trial the block-and-channel method became the
standard and accepted way of ventilating sardine meal, the Court relieved the carrier of
responsibility.

Similarly, the courts have adapted to new methods of combatting sweat damage
by imposing a new standard of care of cargo,238 while modern scientific navigation
235
422 F.2d 7 at p. 11, 1969 AMC 1741 at p. 1746, [1969] 2 Lloyd’s Rep. 536 (2 Cir. 1969), cert. denied,
397 U.S. 964, 1971 AMC 813 (1970). See also Campfire (Pan-American Trade and Credit Corp. v.
Campfire) 156 F.2d 603 at p. 605, 1946 AMC 1139 at p. 1142 (2 Cir. 1946), cert. denied, 329 U.S. 774,
1946 AMC 731 (1946); and Varian Assocs. v. C. G. T. 85 Cal. App. 3d 369 at p. 375, 149 Cal. Rptr. 534 at
pp. 538-539, 1980 AMC 450 at p. 456 (Cal. C.A. 1978); Sunkist Growers, Inc. v. Adelaide Shipping Lines,
Ltd. 603 F.2d 1327 at p. 1331, 1979 AMC 2787 at p. 2795 (9 Cir. 1979), cert. denied, 444 U.S. 1012, 1980
AMC 2102 (1980).
236
155 F.3d 1165 at p. 1172, 1999 AMC 1168 at p. 1178 (9 Cir. 1998). See also C.A. Seguros Orinoco v.
Naviera Transpapel, C.A. 677 F. Supp. 675 at p. 681, 1988 AMC 1757 at p. 1765 (D. P.R. 1988): “In 1893
Congress enacted the Harter Act, 27 Stat. 445 (1893), 46 U.S.C. secs. 190-196, as a statutory compromise
between the two competing interests. Negligence clauses were prohibited, but a shipowner's liability was
limited to the seaworthiness standard, excluding errors in navigation or management by the crew. The
compromise worked so well that representatives of the shipping world met and promulgated the Hague
Rules in 1921, amended in 1924 by the Brussels Convention, which embodied the Harter Act compromise.
In 1936 Congress enacted COGSA, a nearly verbatim copy of the Hague Rules, in implementation of the
Convention.”
237
133 F.2d 781, 1943 AMC 277 (2 Cir. 1943), aff'd, 320 U.S. 249, 1943 AMC 1209 (1943). See also The
T.J. Hooper 60 F.2d 737, 1932 AMC 1169 (2 Cir. 1932), cert. den. 287 U.S. 662 (1932).
238
See Chap. 43, “Sweat Damage and Ventilation”.
 50

equipment must be installed on board vessels if a “due diligence” seaworthiness defense

is to be upheld.239

On the other hand, however, on the theory that “what was unreasonable yesterday
may be reasonable today”, 240 some courts are willing “to consider the effect on COGSA
and maritime law of technological innovation and changing vessel design”241 even
though this disregards the clear wording of the Hague/Visby Rules as it affects
undeclared carriage of cargo on deck.242

8) The text and other texts

The French text of the Brussels Convention of 1924 (the Hague Rules)243 is the
only authoritative version of the Rules;244 the English text and texts in other languages
are merely unofficial translations.245 The French text should, therefore, have precedence
in questions of interpretation.246

239
See Chickasaw 265 F. Supp. 595, 1966 AMC 2219 (S.D. Cal. 1966), upheld on appeal 414 F.2d 724,
1969 AMC 1682, [1970] 1 Lloyd’s Rep. 437 (9 Cir. 1969).
240
Electro-Tec Corp. v. S/S Dart Atlantica 598 F. Supp. 929 at p. 934, 1985 AMC 1606 at p. 1612 (D. Md.
1984).
241
Ibid. See also Mormacvega (Dupont de Nemours Internat. v. S.S. Mormacvega) 493 F.2d 97 at p. 102,
1974 AMC 67 at p. 75, [1974] 1 Lloyd’s Rep. 296 at p. 300 (2 Cir. 1974). See also Neuenberger
Schweizerische Allgemeine Versicherungs-Gesellschaft v. S.S. Aldebaran 1990 AMC 1886 at p. 1891, note
4 (S.D. N.Y. 1989); Insurance Company of North America v. Blue Star, Ltd. 1997 AMC 2434 at pp. 2441-
2443 (S.D. N.Y. 1997); Konica Business Machines, Inc. v. Sea-Land Consumer153 F. 3d 1076 at p. 1078,
1998 AMC 2705 at p. 2708 (9 Cir. 1998); Alternative Glass Supplies v. M/V Nomzi 1999 AMC 1080 at p.
1087 (S.D. N.Y. 1999). See also Christopher Hill, Maritime Law, 5 Ed., LLP Limited, London and Hong
Kong, 1998 at p. 195.
242
See Chap. 30, “Containers” and Chap 31, “Deck Carriage”.
243
Convention internationale pour l’unification de certaines règles en matière de connaissement signée à
Bruxelles le 25 août 1924, entrée en vigueur le 2 juin 1931; (Translation): “International Convention for the
Unification of Certain Rules of Law Relating to Bills of Lading, signed at Brussels on August 25, 1924 and
entered into force on June 2, 1931”.
244
This point was acknowledged expressly by the House of Lords in The Jordan II [2004] UKHL 49 at
para. 18.
245
The former Carriage of Goods by Sea Act, 1924 of the United Kingdom (14 & 15 Geo. 5, c. 22), which
entered into force on August 1, 1924 and was repealed by the Carriage of Goods by Sea Act (1971 U.K., c.
19), was the most authoritative English translation.
246
There are no standard principles of interpretation for international conventions because of the
multiplicity of ways they can be incorporated into the municipal law of a nation. “Conventions, when made
part of English law, may be expressed in language texts in various ways. There may be only an English
statutory text which is based upon the convention, the convention itself not being incorporated in the
statute. There may be an English convention text which is incorporated in the statute. There may be a
French (or other language) convention text with an English translation adopted by the English statute; there
may be convention texts in two languages with or without a provision that one shall prevail in case of doubt
(contrast this case with the Hague Convention of 1961 on Wills). Different principles of interpretation may
apply to each of these cases.” (per Lord Wilberforce in Buchanan & Co. v. Babco Ltd. [1978] A.C. 141 at
p. 152, [1978] 1 Lloyd’s Rep. 119 at p. 122 (H.L.).). While most of Lord Wilberforce’s statement remains
true, the Vienna Convention 1969, which came into force in 1980 after Buchanan was decided, now in fact
does provides certain “standard principles of interpretation for international conventions”. See section
III(3), supra.
 51

Of course, a court would look at, and be bound by, its national law, which will be in
the language of that country. Nevertheless, one is generally permitted to look at the
origins and history of a law in order to interpret it, and the preamble of most national
Hague Rules legislation refers back to the Brussels Convention, 1924.

Thus, in Pyrene Co. v. Scindia Steam Navigation Co.,247 Devlin J. said:

“If there is any doubt, the French text (set out in Carver, 9th ed., p. 1065)
makes it quite clear. Having regard to the preamble to the Act and the fact
that the French text is the only authoritative version of the Convention, I
think, notwithstanding [counsel’s] objection, that it is permissible to look
at it. I agree that it is not conclusive, but it may help solve an ambiguity if
there be one. I agree also that unless the court is assisted by a French
lawyer it should be looked at cautiously; but the appreciation of this
particular point needs no more French than every schoolboy knows, and I
think it would be pedantic to ignore it.”

The importance of relying upon the official language version of an international

convention lies in the need for uniform interpretation. The following rationale offered by
Lord Denning M.R., in Corocraft v. Pan American Airways,248 in respect to the Warsaw
Convention,249 should be applied equally to the Brussels Convention of 1924:

“There is another, and perhaps more powerful, reason for adopting the
French text. The Warsaw Convention is an international convention which
is binding in international law on all the countries who have ratified it: and
it is the duty of these courts to construe our legislation so as to be in
conformity with international law and not in conflict with it. Seeing that
the convention itself gives authority to the French text, and to the French
text alone, we should so construe our legislation as to give priority to the
French text over the English version.”

247
[1954] 2 Q.B. 402 at p. 421, [1954] 1 Lloyd’s Rep. 321 at p. 330.
248
[1969] 1 All E.R. 82 at p. 87, [1969] 1 Q.B. 616 at p. 653 (C.A.). See also comments to the same effect
by Lord Wilberforce and Lord Edmund-Davies in Buchanan & Co. v. Babco Ltd. [1978] A.C. 141 at pp.
152-153 and 168-169, [1978] 1 Lloyd’s Rep. 119 at pp. 122-123 and 132-133 (H.L.).
249
Convention for the Unification of Certain Rules Relating to International Transportation by Air, adopted
at Warsaw, October 12, 1929, ICAO Doc. 9201, 49 Stat. 3000, T.S. No. 876 (1934), note following 49
U.S.C. 40105. The U.K. gave the force of law to the Warsaw Convention 1929, in an English translation
scheduled to its Carriage by Air Act, 1932, 22 & 23 Geo. 5, c. 36, but ratified the authoritative French text
on February 14, 1933. See King v. Bristow Helicopters Ltd. [2002] 2 Lloyd's Rep. 745 at p. 759 (H.L.). The
Warsaw Convention, as amended by its Hague Protocol 1955, was subsequently incorporated into Schedule
1 of the U.K.’s Carriage of Goods by Air Act, 1961, 9 & 10 Eliz. 2, c. 27, and sect. 1 of the Act provides
that in the event of inconsistency between the English and French texts of the Convention, the French text
shall prevail.
 52

Lord Denning’s holding on this point is consistent with art. 33(1) of the Vienna
Convention on the Law of Treaties 1969,250 which requires that, in interpreting a treaty
authenticated in more than one language, precedence be given to the language version
which that instrument declares, or which the contracting states agree, to be the sole
authoritative version.

The United States Supreme Court has given precedence to the French text of the
Warsaw Convention, for another reason as well, holding that it was necessary to consider
the legal meaning of the Convention’s terms in French:251 “…because it is our
responsibility to give the specific words of the treaty a meaning consistent with the
shared expectations of the contracting parties…. We look to the French legal meaning for
guidance as to these expectations because the Warsaw Convention was drafted in French
by continental jurists.”

The Brussels Protocol of 1968 (the Visby Rules),252 on the other hand, was signed
“in the French and English languages both texts being equally authentic ...” Both the
Hamburg Rules, 1978253 and the Multimodal Convention, 1980254 have official texts in
Arabic, Chinese, English, French, Russian and Spanish.

The correct principles of interpretation, when dealing with an international

convention drawn in two or more languages, were discussed by Lord Wilberforce in
Buchanan & Co. v. Babco Ltd.255 in respect to a 1956 international convention256 whose
terms are contained in the Schedule to the Carriage of Goods by Road Act 1965:257

“The Convention of 1956 is in two languages, English and French, each

text being equally authentic. The English text alone appears in the
Schedule to the Act of 1965 and is by that Act (section 1) given the force
of law. Moreover the contract of carriage seems to have incorporated
contractually this English text. It might therefore be arguable (though this
was not in fact argued) – by distinction from a case where the authentic
text is (for example) French and the enacted text an English translation –
that only the English text ought to be looked at. In my opinion this would
be too narrow a view to take, given the expressed objective of the

250
Adopted at Vienna, May 22, 1969 and opened for signature on May 23, 1969, 1155 U.N.T.S. 331, 8
I.L.M. 679. The Convention entered into force on January 27, 1980. See discussion of the Convention at
sect. III(3), supra.
251
Air France v. Saks 470 U.S. 392 at p. 399 (1985).
252
Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to
Bills of Lading, signed at Brussels on August 25, 1924. (The Protocol was signed on February 23, 1968 and
entered into force on June 23, 1977.).
253
United Nations Convention on the Carriage of Goods by Sea, 1978, adopted at Hamburg on March 30,
1978, and in force November 1, 1992. See English, French and German texts at [1979] ETL at pp. 503-559.
254
United Nations Convention on International Multimodal Transport of Goods, adopted and signed at
Geneva on May 24, 1980.
255
[1978] A.C. 141 at p. 152, [1978] 1 Lloyd’s Rep. 119 at p. 122 (H.L.).
256
Convention on the Contract for the International Carriage of Goods by Road (the “CMR Convention”),
adopted at Geneva, May 19, 1956, and in force July 2, 1961.
257
U.K., 1965, c. 37.
 53

Convention to produce uniformity in all contracting states. I think that the

correct approach is to interpret the English text, which after all is likely to
be used by many others than British businessmen, in a normal manner,
appropriate for the interpretation of an international convention,
unconstrained by technical rules of English law, or by English legal
precedent, but on broad principles of general acceptation: Stag Line Ltd. v.
Foscolo, Mango and Co. Ltd., [1932] A.C. 328, per Lord Macmillan, at p.
350. Moreover, it is perfectly legitimate in my opinion to look for
assistance, if assistance is needed, to the French text. This is often put in
the form that resort may be had to the foreign text if (and only if) the
English text is ambiguous, but I think this states the rule too technically.
As Lord Diplock recently said in this House the inherent flexibility of the
English (and, one may add, any) language may make it necessary for the
interpreter to have recourse to a variety of aids: Carter v. Bradbeer,
[1975] 1 W.L.R. 1204, 1206. There is no need to impose a preliminary test
of ambiguity.”

Once the court finds it necessary to seek assistance from the foreign language
text of the international convention under scrutiny, the question arises how the court
ought to ascertain the meaning of a word or an expression in a foreign language? This
issue was discussed by Lord Wilberforce in a judgment subsequent to the Buchanan’s
case:258

“The process of ascertaining the meaning [of a word or an expression in a

foreign language] must vary according to the subject matter. If a judge has
some knowledge of the relevant language, there is no reason why he
should not use it: this is particularly true of the French or Latin languages,
so long languages of our courts. There is no reasons why he should not
consult a dictionary, if the word is such that a dictionary can reveal its
significance: often of course it may substitute one doubt for another.... In
all cases he will have in mind that ours is an adversary system: it is for the
parties to make good their contentions. So he will inform them of the
process he is using, and, if they think fit, they can supplement his
resources with other material – other dictionaries, other books of
reference, text-book and decided cases. They may call evidence of an
interpreter, if the language is one unknown to the court, or of any expert if
the word or expression is such as to require expert interpretation. Between
a technical expression in Japanese and a plain word in French there must
be a whole spectrum which calls for suitable and individual treatment.”

Unfortunately, courts, particularly in common law jurisdictions, do not always

give due primacy to the official French text of the Hague Rules in their decisions.259

258
Fothergill v. Monarch Airlines [1981] A.C. 251 at pp. 273-74, [1980] 2 Lloyd’s Rep. 295 at p. 299
(H.L.).
259
See, for example, The Jordan II [2005] 1 All E.R. 175 at p. ___ (para. 19) (H.L.), where although the
House of Lords recognized that the French version of the original Hague Rules was the only authoritative
 54

9) References to foreign judgments

As a general rule, common law countries have relied on and cited judgments of the
courts of England and the United States, while la doctrine and the laws and the
judgments of France have greatly influenced civil law jurisdictions in respect to carriage
of goods by sea.

Continental authors, too, refer at times to English and American courts and
authorities but, unfortunately, perhaps because of the language barrier, references rarely
if ever move in the other direction.260 It is obvious that there should be many more
exchanges in both directions between civil law and common law jurisdictions, which are
at present far too rare.261 This is extremely unfortunate because maritime law, being
international law, is based on the lex mercatoria and lex maritima – laws which knew no
national boundaries.262

version, and also admitted that the French version supported the cargo claimant's argument that the carrier
was not free to transfer any of his duties under art. 3(2) of the Rules to the shipper or consignee,
nevertheless decided that such a transfer was to be permitted in accordance with previous English decisions
interpreting the Rules.
260
The following passage from Lord Diplock’s speech, in Fothergill v. Monarch Airlines [1981] 1 A.C.
251 at p. 284, [1980] 2 Lloyd’s Rep. 295 at p. 306 (H.L.), gives some additional reasons, beside that of
language, why English courts are not easily swayed by other countries’ case law:
“As respects decisions of foreign courts, the persuasive value of a particular court’s
decision must depend upon its reputation and its status, the extent to which its decisions
are binding upon courts of co-ordinate and inferior jurisdiction in its own country and the
coverage of the national law reporting system. For instance your Lordships would not be
fostering uniformity of interpretation of the Convention if you were to depart from the
prima facie view which you had yourselves formed as to its meaning in order to avoid
conflict with a decision of a French court of appeal that would not be binding upon other
courts in France, that might be inconsistent with an unreported decision of some other
French court of appeal and would be liable to be superseded by a subsequent decision of
the Court of Cassation that would have binding effect upon lower courts in France. It is
no criticism of the contents of the judgments in those foreign cases to which your
Lordships have been referred if I say that the courts by which they were delivered do not
appear to me to satisfy the criteria which would justify your Lordships in being
influenced to follow their decisions in the interests of uniformity of interpretation.”
See also Lords Wilberforce’s and Scarman’s speeches, supra, A.C. at pp. 275-276 and 294-295, Lloyd’s
Rep. at pp. 300-301 and 312.
261
Such was not always the case in the United States, however. In The Ship Catharina 1 Pet. Adm. 104,
Fed. Cas. No. 13,949, 23 Fed. Cas. 1028 at p. 1029, a district judge, writing in 1795, stated that in regards
to the maritime law, the jurisprudence of other countries should be referred to: “If by our own municipal
laws, there are rules established, our courts are bound exclusively to follow them. But in cases where no
such rules are instituted, we must resort to the regulations of other maritime countries, which have stood the
test of time and experience, to direct our judgments, as rules of decision.” See also Joseph Story, The
Literature of the Maritime Law, Miscellaneous Writings, 1835, at p. 93, where the foreign and historical
sources of maritime law which were useful to the American lawyer are discussed.
262
As to whether international maritime law, the lex maritima, still exists, as distinct from the internal
municipal laws of sovereign states, see Tetley, “The General Maritime Law – The Lex Maritima” (1994) 20
Syracuse J. Int’l L. & Comm. 105-145, reprinted in [1996] ETL 469-506; Tetley, Maritime Liens &
Claims, 2 Ed., 1998, chap. 1. On the related concept of a modern lex mercatoria, increasingly evident in
today’s international commercial arbitration, see also Tetley, International Conflict of Laws, 1994 at pp.
 55

Maritime law and the law of carriage of goods by sea should be international and
uniform, because goods and ships travel from one jurisdiction to another. Merchants,
shippers, consignees and carriers (and their underwriters) can only have complete
confidence in a contract if they are certain as to which law will apply and how it will be
interpreted, no matter in what jurisdiction their claim or defence is heard. For this reason
all courts of Admiralty and maritime jurisdictions throughout the world should study and
be conversant with and (when the occasion arises) rely on the decisions of other
jurisdictions in respect to such international conventions as the Hague and Hague/Visby
Rules.

The willingness of courts to consider as persuasive authority, and even to follow,

decisions of foreign courts on matters of interpretation of the Hague and Hague/Visby
Rules is somewhat greater today than in the past, at least as between countries within the
English-speaking world,263 although there are still occasions where this comparative law
approach yields results which unfortunately tend to weaken, rather than to reinforce,
international uniformity of construction.264

417-419 and 868 and Tetley, International Maritime and Admiralty Law, 2002 at pp. 442-443. See,
however, statements made by Lord Diplock in The Tojo Maru [1971] 1 Lloyd’s Rep. 341 at p. 361 (H.L.).
263
See, for example, Sunkist Growers, Inc. v. Adelaide Shipping Lines, Ltd. 603 F.2d 1327 at p. 1337, 1979
AMC 2787 at p. 2801 (9 Cir. 1979), cert. denied, 444 U.S. 1012, 1980 AMC 2102 (1980), where the Ninth
Circuit, noting the similarity between American and Canadian carriage of goods by sea statutes, both of
which were founded on the Hague Rules, was clearly influenced by the Privy Council’s decision in the
Canadian case of Maxine Footwear v. Canadian Government Merchant Marine [1959] A.C. 589, [1959] 2
Lloyd’s Rep. 105 (P.C.) and by the Supreme Court of Canada’s decision in Dominion Glass Co. Ltd. v. The
Anglo Indian [1944] S.C.R. 409, 1944 AMC 1407, in deciding that the carrier’s obligation of due diligence
to make the ship seaworthy before and at the beginning of the voyage, if violated, precluded the carrier
from invoking the exception of fire under art. 4(2)(b) of the Rules and sect. 4(2)(b) of U.S. COGSA, 46
U.S.C. Appx. 1304(2)(b). More recently, the Second Circuit, in Senator Linie GmbH. V. Sunway Line, Inc.
291 F.3d 145, 2002 AMC 1217 (2 Cir. 2002), relied heavily on the House of Lords’ decision in Effort
Shipping Ltd. v. Linden Management S.A. (The Giannis N.K.) [1998] A.C. 605, [1998] 1 Lloyd’s Rep. 337,
1998 AMC 1050 (H.L.), in deciding that the shipper should be held strictly liable under sect. 4(6) of U.S.
COGSA (46 U.S.C. Appx. 1304(6)) for loading inherently dangerous cargo, even where it was unaware of
the danger before shipment. In Effort Shipping, the House of Lords also made mention of American case
law. See [1998] A.C. at pp. 624-625, [1998] 1 Lloyd’s Rep. at pp. 348-349, 1998 AMC at pp. 1068-1069.
The Federal Court of Canada also followed Effort Shipping in Elders Grain Co. Ltd. v. M/V Ralph Misener
2003 AMC 1889 at pp. 1901-1903 (Fed. C. Can.). See also El Greco (Australiai) Pty. Ltd. v.
Mediterranean Shipping Co. [2004] 2 Lloyd's Rep. 537 at p. 560, 2004 AMC 2886 at p. 2925 (Fed. C.
Aust., Full Court): ""… to the extent that there exist persuasive and considered authorities in jurisdictions
administering cognate laws based on internationally adopted conventions, it is appropriate to give weight to
such decisions in order to strive for international uniformity."
264
See, for example, The Kapitan Petko Voivoda [2003] 2 Lloyd’s Rep. 1 (C.A.), where, although
Longmore L.J. deferentially quoted Lord Macmillan’s statement in Stag Line Ltd. v. Foscolo Mango & Co.
Ltd. [1932] A.C. 328 at p. 350, [1931] 41 Ll. L. Rep. 165 at p. 174 about the need to interpret the Hague
Rules as an international convention on “broad principles of general acceptation”, he nevertheless refused
to follow a number of non-English decisions cited, which had held that unjustified deck carriage deprived
the carrier of the liability limitations. Judge L.J., for his part, stated in the same case that: “By way of
footnote, I should add that, notwithstanding that we are considering an international convention, I can see
no advantage in commenting on decisions reached in different jurisdictions. I gratefully adopt Lord Justice
Longmore’s analysis of them.” (ibid. at p. 18). In The Jordan II [2005] 1 All E.R. 175 at p. _____ at paras.
22-24 (H.L.), the House of Lords similarly refused to follow U.S., South African or French decisions
 56

10) Precedence of a later statute

Occasionally, both the Hague or Hague/Visby Rules and a domestic statute must
be considered together when solving a special problem. This is particularly true when a
national bills of lading act or a national arbitration act affect a contract of carriage
subject to the Rules. If a consistent and reasonable solution cannot be reached when
applying the two statutes together, the later statute is usually given supremacy.265 This
was the finding in Uniao de Transportadores v. Acoreanos,266 where the U.S.
Arbitration Act of 1925, having been re-enacted in 1947,267 was held to prevail over
COGSA adopted in 1936, when the two were in conflict. The libellant claimed COGSA
forbade an arbitration clause calling for arbitration in Portugal, but the court ruled:268

“It seems reasonable to me that if Congress, in 1947, thought that the

Carriage of Goods by Sea Act of 1936 affected or forbade any provisions
in the Arbitration Act of 1947, it would and could have plainly avoided
any such confusion.”

The practice of giving supremacy to a subsequent national statute must be

conducted prudently, because it could result in a national or domestic law abrogating an
international law and thus affecting international uniformity and the purpose of the
international convention or treaty.

11) Precedence of the international convention

When France is party to an international convention, the convention has

precedence over the local statute, in virtue of art. 55 of the Constitution of October 4,
1958.269 Thus in cases of conflict, the Hague/Visby Rules will have precedence over the
Law of June 18, 1966.270 Art.16 of the Law of June 18, 1966271 is also specific on this
point.272

declaring the carrier's duties to load, stow and discharge the goods properly and carefully (under art. 3(2) of
the Hague Rules) to be non-delegable, preferring to cling to English and some Commonwealth decisions
which authorize such delegation.
265
See Scrutton L.J. in Flannagan v. Shaw [1920] 3 K.B. 96 at p. 105 citing A.L. Smith J. in Kutner v.
Phillips [1891] 2 Q.B. 267 at pp. 271-272: “Now a repeal by implication is only effected when the
provisions of a later enactment are so inconsistent with or repugnant to the provisions of an earlier one, that
the two cannot stand together, in which case the maxim “Leges posteriores contrarias abrogant” (2 Inst.
685) applies.” See also Craies on Statute Law, 17 Ed., London, 1971, at p. 366 et seq. and Maxwell on
Interpretation of Statutes, 12 Ed., London, 1969, at p. 193 et seq.
266
84 F. Supp. 582, 1949 AMC 1161 (E.D. N.Y. 1949).
267
9 U.S. Code 1.
268
Ibid., 84 F. Supp. at p. 584, 1949 AMC at p. 1163.
269
J.O., October 5, 1958.
270
See Tribunal de Commerce du Havre, July 31, 1970, DMF 1971, 163 at p. 166, upheld by Cour d’Appel
de Rouen, October 2, 1970, DMF 1971, 167. See also Pierre Lureau, Le Cas de force majeure et la loi du 2
avril 1936, DMF 1949, 179 at p. 182: “Or, il a toujours été admis qu’en cas de conflit entre une convention
internationale et une loi interne, c’est la première qui est la plus forte. Ce principe, resté longtemps
théorique, a pris un caractère formel et constitutionnel depuis la Constitution du 27 octobre 1946. L’article
28 pose en effet le principe de la supériorité du traité sur la loi interne ....”; (Liberal translation):
 57

Although there is no such constitutional mandate in the United Kingdom, the

courts have recognized the necessity of construing the Rules with international
uniformity in mind.273

VIII. The Hague/Visby Rules

The Hague and Hague/Visby Rules are generally fair and commercially
acceptable uniform international rules of carriage of goods by sea. They are in effect
codifying statutes and provide an important link between the civil law and the common
law, as well as being a fertile source of comparative law. In particular, the jurisprudence
relating to the Rules illustrates that “interpretation” in civil law jurisdictions and
“construction” in common law jurisdictions usually produce very similar results in
practice. Such uniformity of interpretation is greatly aided by the understanding that the
Rules, as an international convention, require a truly international interpretation to ensure
that they attain their purpose of harmonizing international law of carriage of goods by
sea.

Unfortunately, the awareness of the need for this kind of international

construction does not always seem uppermost in the minds of some courts. The House of
Lords, in The Starsin,274 for example, used English common law and focused on the
specific manner in which the bill of lading’s signature box was completed in determining
whether the bill was a shipowner’s bill or a charterer’s bill. The Court refused to consider
the possibility that under the Rules themselves, both those parties might well have been
the “carrier” (a position taken in many other countries). This is a disappointing
application of restrictive common-law construction, foreclosing a more genuinely

“However, it has always been admitted in the case of a conflict between an international convention and a
domestic law, that the former has precedence. This principle, which has long remained theoretical, has
taken a formal and constitutional quality since the Constitution of October 27, 1946. Art. 28 states in effect
the principle of the superiority of a treaty over a national statute ....” See also Cour d’Appel de Paris, June
19, 1963, DMF 1963, 666, in respect to art. 55 of the Constitution of October 4, 1958 and the Brussels
Convention of 1924.
271
Law No. 66-420 of June 18, 1966.
272
Cour d’Appel d’Aix, June 9,1978, DMF 1979, 532. Note, however, that art. 16 of the French Law no.
66-420 may now be a “dead letter”, in view of the coming into force in France of the Convention on the
Law Applicable to Contractual Obligations, adopted at Rome, June 19, 1980, 80/934/EEC, O.J.E.C.,
October 9, 1980, in force April 1, 1991. See Tetley, International Conflict of Laws, 1994 at p. 712.
273
Stag Line, Ltd. v. Foscolo, Mango & Co. [1932] A.C. 328 at p. 350, (1931) 41 Ll. L. Rep. 165 at p. 174
(H.L.). See also The Eschersheim [1976] 2 Lloyd’s Rep. 1 at pp. 8-9 (H.L.): “As the Act [The
Administration of Justice Act, 1956 (4 & 5 Eliz. 2, c. 46)] was passed to enable H.M. Government to give
effect to the obligations in international law which it would assume on ratifying the convention to which it
was a signatory, the rule of statutory construction laid down in Salomon v. Customs and Excise
Commissioners, [1966] 2 Lloyd’s Rep. 460, [1967] 2 Q.B. 116 and Post Office v. Estuary Radio Ltd.,
[1968] 2 Q.B. 740 is applicable. If there be any difference between the language of the statutory provision
and that of the corresponding provision of the convention, the statutory language should be construed in the
same sense as that of the convention if the words of the statute are reasonably capable of bearing that
meaning.”
274
[2003] 1 Lloyd’s Rep. 571 (H.L.).
 58

international interpretation. Similarly, in The Jordan II,275 the Law Lords rejected the
invitation to follow the case law of other major shipping countries such as the United
States, South Africa and France, and to hold that the carrier's duty under art. 3(2) of the
Hague Rules to load, stow and discharge cargo is non-delegable. Rather, they reaffirmed
earlier English precedents (and those of some Commonwealth countries which had
adopted those precedents) authorizing carriers to transfer by contract the loading, stowing
and/or discharging functions to shippers, charterers or consignees.

IX. The Hamburg Rules

Whereas Hague and Hague/Visby reflect the common law style of precise,
detailed drafting, the Hamburg Rules are drafted in the more concise, civilian style. The
Hamburg Rules at art. 3 state the obvious, that the Hamburg Rules, being an international
convention, should be interpreted to promote uniformity. This goes without saying.
Nevertheless, art. 3 will be a reminder to particular nations whose courts might wish to
follow a line of decisions completely different from those of the rest of the world. On the
other hand, a single, non-mandatory rule of interpretation without reference to other rules
of interpretation and their priority seems to be a pious hope rather than a true rule of
interpretation.

A most peculiar paragraph was added at the end of the Hamburg Rules as Annex
II at the instigation of the U.S. delegation and reads as follows:

“It is the common understanding that the liability of the carrier under this
Convention is based on the principle of presumed fault or neglect. This means
that, as a rule, the burden of proof rests on the carrier but, with respect to certain
cases, the provisions of the Convention modify this rule.”

The common understanding is not part of the Hamburg Rules. By its ambivalence,
it is itself an example of confusing drafting, which neither pleases nor instructs any
logical person, whether merchant, lawyer or judge.

X. Conclusion

While civil law codification focuses on concision, common law statutory drafting
emphasizes precision. It is not surprising, therefore, that both styles of drafting can be
seen in different international conventions. Nor is it surprising that the interpretation of
both national laws and international conventions in the civil law world tends to be
“teleological”, directed at identifying and giving effect to the overall purpose of the law
or convention in question -- an approach which results in a more open attitude to the
sources from which guidance may be sought in the interpretative process (notably,
travaux préparatoires). The common law, on the other hand, in which statutes and
conventions are often seen as having the primarily remedial purpose of filling gaps in the

275
[2005] 1 All E.R. 175 (H.L.).
 59

judge-made law, is traditionally more restrictive and literal in construing the words and
phrases of statutes and conventions and less willing to admit external sources in the
process of construction. Fortunately, the Vienna Convention on the Law of Treaties,
1969, in force in over ninety countries, has made a major contribution to unifying the
principles of interpretation of international conventions, laying down the basic principle
of good faith in interpreting treaty terms in the light of their context, object and purpose,
and enumerating the kinds of external sources which may be taken into account by the
interpreter.

Courts and arbitrators around the world must therefore consciously seek to
ascertain and abide by a truly “international” interpretation of the Hague, Hague/Visby
and Hamburg Rules and the national statutes enacting them. This type of interpretation
requires the actual words of the drafters to be preferred to concepts of the pre-convention
law. It also requires a clear preference for an international, over a domestic, construction,
in recognition of the purpose of standardization of carriage by sea law which the Rules
were designed to promote. Travaux préparatoires should be referred to in grasping the
real meaning and object of the provisions to be construed, where any ambiguity persists.
Exceptions should be construed narrowly, and a deliberate effort made to preserve the
delicate balance between shipper and carrier interests which the Rules aimed to maintain.
Often, it may prove helpful to refer to the original, authoritative French version of the
Hague Rules, to verify that the true intent of the convention is being respected.

Fortunately too, the House of Lords has set an example by liberating itself from
the extreme rigidity of its pre-1966 doctrine of stare decisis, and has joined other
supreme courts (notably the U.S., Canadian and Australian) in showing greater
willingness to re-examine its previous rulings. This more flexible position at least
provides some hope of a more international approach eventually becoming predominant
in the construction of international conventions, particularly in respect of the carriage of
goods by sea. At the same time, as the Judicial Committee of the Privy Council continues
to be replaced by national and supra-national supreme courts as the final appellate court
in civil matters for more and more countries, vigilance will be required in order to
preserve international uniformity of interpretation.

Prof. William Tetley, Q.C.

Faculty of Law
McGill University
E-mail: [email protected]
Website: http://www.mcgill.ca/maritimelaw