Lloyd's Maritime and Commercial Law Quarterly
FREEDOM OF CONTRACT IN MARITIME LAW
Jan Ramberg*
I. THE DEVI. THE DEVELOPMENT TOWARDS CONTROL OF MARITIME CONTRACTS BY MANDATORY LAW
A. The rise and fall of freedom of contract in maritime law
The status of the common carrier and his strict and unlimited liability
The development of maritime law is a good example of the more general problem of the rise and fall of freedom of contract as shown in the impressive study by Professor Atiyah.1 Before industrialization and reliance on “invisibles” such as contractual promises, rather than the exchange of goods and services for money, contract law focused on the position (status) of the promisor rather than on individual contract terms. Solutions could be drawn directly from the various contract types such as sale (venditio), services (locatio operis and mandatum), storage (depositum and receptum), inn-keeping and transport. As far as transport was concerned, the notion of common carrier was based on the principle of strict liability with some few exceptions (acts of God, King’s/Queen’s enemies and inherent vice of the goods themselves). As has been said in the leading case from this time, Coggs v. Bernard.2
For though the force be never so great, as if an irresistible multitude of people should rob him, nevertheless he is chargeable. And this is a politic establishment, contrived by the policy of the law ….
The former static society did not offer many opportunities for the contracting parties to negotiate individual contract terms and, therefore, those terms normally followed with the contract type as such, more or less in the same manner as standardized contract terms in the modern society. Thus, the modern adhesion contract bears a striking resemblance to the old type of contract following from the status of the offeror. In this sense, we seem, so to say, to be back to point of origin. Theoretically, of course, a distinction could be made between common carriers and private carriers where the latter are offered the opportunity to negotiate individual contract terms freely. But even in charterparty trade the terms are standardized in various forms and clauses which could be added to the charterparty. However, as distinguished from the normal situation in liner trade, parties to a charterparty
* Professor of Private Law, University of Stockholm. This paper is the text of the Donald O’May Lecture in Maritime Law, “Maritime Contracts and Mandatory Law”, delivered at the Institute of Maritime Law of the University of Southampton on 12 November 1991.
1. P. S. Atiyah, The rise and fall of freedom of contract (Oxford, 1988).
2. (1703) 2 Ld. Raym. 909, 918.
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