Lloyd's Maritime and Commercial Law Quarterly
PROPOSED AMENDMENTS TO THE US CARRIAGE OF GOODS BY SEA ACT: A REPLY TO PROFESSOR STURLEY’S RESPONSE
Regina Asariotis *
Michael N. Tsimplis *
Michael Sturley’s fierce criticism of our paper1 is understandable. As reporter of the USMLA study group who worked out the proposals over several years, Sturley must ache to see the proposals accepted. Every discussion that might raise concern and slow down progress with the Bill is clearly not welcome to those who have spent time and effort in working out this “commercial compromise”.2 Nevertheless, when lawyers need to rely on George Bernard Shaw to make a point, something is wrong. The proposals for a new US COGSA are out there for everyone to consider. If the proposals lead to legislation, the US law will change, for better or for worse (depending on one’s point of view), but certainly a new—yet untested—set of rules, which deviates considerably from the Hague-Visby Rules (or for that matter from the Hamburg Rules), will be in place. Whether or not foreign commentators fail to appreciate the intricacies of current US legislation and jurisprudence is beside the point: the rest of the world will be affected by any new US COGSA and needs to appreciate potential implications of the proposed Bill. The explanations of the draftsmen as to their intention will be of little consolation to someone, who may later be caught by one of the new law’s—possibly unintended—consequences.
Despite the strong tone of his response, Sturley addresses few of the substantive points made in our paper. Instead, he starts by explaining the background to the proposals,3 stating in essence that, although “no one was entirely happy with the results”,4 the proposals represent the only acceptable compromise, i.e., the best “deal” available. While that may be the case, it does not place the proposed legislation beyond criticism (or for that matter, necessarily make parties external to the “compromise-negotiations” happy). Indeed, Sturley’s explanation suggests that there may be problems with the Bill, but we are simply asked to accept these.5
Sturley concentrates on, as he says, “some of the more significant problems” with our paper. We will seek briefly to address his comments, but would first like to make a general point. The article to which Sturley’s “Response” relates was based on the Senate Staff Working Draft dated 19 June, 1998. Since the publication of our paper, there have been
* Lecturer in Law, Institute of Maritime Law, University of Southampton.
1. R. Asariotis and M. N. Tsimplis, “The Proposed US Carriage of Goods by Sea Act” [1999] LMCLQ 126 (hereafter “Asariotis & Tsimplis”); M.F. Sturley’s response, “Proposed Amendments to the US Carriage of Goods by Sea Act: A Response to English Criticisms” (hereafter referred to as “Response”), is published supra, 519.
2. Response, text to fn. 12.
3. Response, Part I.
4. Response, text to fn. 12.
5. See also Sturley’s carefully worded reservations (quoted in Asariotis & Tsimplis, 136, fn. 79), which he seeks to play down in Response, fn. 12.
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