Lloyd's Maritime and Commercial Law Quarterly
ARBITRATING MARITIME CARGO DISPUTES—FUTURE PROBLEMS AND CONSIDERATIONS
Kenneth-Michael Curtin*
Maritime commerce between nations by its very nature implicates various and differing national laws. In an attempt to unify these varying laws, nations have formulated various treaties and uniform codes. However, differences still remain. One of these differences concerns the validity and enforcement of agreements to arbitrate maritime cargo disputes. Some nations, such as England, have long recognized the arbitrability of cargo disputes, but other nations, such as the United States and Australia, have either through statute or judicial interpretation disallowed the arbitration of cargo disputes. In a recent American court decision, the Supreme Court of the United States affirmatively declared cargo disputes arbitrable. However, other nations still maintain that agreements to arbitrate cargo disputes are void and unenforceable. This paper explores this issue, concentrating on the impact that the varying national approaches to the arbitrability of cargo disputes might have on the enforcement of arbitral awards and other substantive areas of maritime law.
I. INTRODUCTION
On 9 January 1968, a storm in the Gulf of Mexico severely damaged an oil drilling rig while being transported from Louisiana to Italy by a German corporation. The German tug sought refuge in the port of Tampa, Florida. Soon thereafter, the owner of the platform filed suit in the United States District Court at Tampa seeking compensation for damage to its rig.1 The German corporation countered by petitioning the court to stay proceedings and dismiss the suit on the basis of a choice-of-forum clause contained in the towage contract requiring all disputes be brought before the English court.2 The case wound its way through the federal courts, finally ending up in the Supreme Court of the United States. In the now famous case of M.S. Bremen v. Zapata Off-Shore Co., Burger, J., declared the forum selection clause valid and enforceable. The court reasoned that the U.S. “cannot have trade and commerce in world markets and international waters exclusively on our terms, governed by our laws, and resolved in our courts”.3
The Bremen opened the floodgates to a myriad of issues involving choice-of-forum and choice-of-law clauses. This paper will discuss one such side issue—the controversy of whether clauses
*Paxton, Crow, Bragg, Smith & Keyser, West Palm Beach, Florida.
1. M.S. Bremen v. Zapata Off-Shore Co. (1972) 407 U.S. 1, 3–4.
2. The arbitration clause read: “Any dispute arising must be treated before the London Court of Justice”: ibid., 2.
3. Ibid., 9.
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