Lloyd's Maritime and Commercial Law Quarterly
CONFLICT OF LAWS IMPLICATIONS OF THE CARRIAGE OF GOODS BY SEA ACT 1992
Toh Kian Sing*
The Carriage of Goods by Sea Act 1992 (hereafter the 1992 Act), like its repealed predecessor, the Bills of Lading Act of 1855 (hereafter the 1855 Act), is silent as to its scope of application so far as conflict of laws is concerned. This problem of its conflictual scope, never before the subject of judicial edification, was raised but ultimately left unresolved by the Law Commission which drafted the Act.1
An attempt at an answer, along with a survey of related issues, will be made here.
A. A mandatory statute of the forum?
Statutes with this kind of reticence (unless of a procedural nature, as to which more will be said presently) are usually construed in the light of the rebuttable presumption against extra-territoriality, which was fairly recently invoked in Holmes v. Bangladesh Biman Corp.2 Accordingly, a forum declines application of its own statutes unless the lex causae coincides with the domestic law of the lex fori. In other words, the width of a statute is read down by conflict of laws principle so as to reflect Parliament’s disinclination to legislate beyond territorial limits. However, this presumption against extra-territoriality is rebutted when a statute, encapsulating an overriding policy of the forum or cast in very clear language,3 is regarded as mandatory and hence applicable even when the lex causae is foreign. On the few occasions in which the presumption has been ignored, the courts treated a rule as one of ordre public internationale and hence mandatory just because it is captured in statutory form. Given the intrusive character of mandatory statutes to the choice of law process and its disruptive effect on comity, such arbitrariness has met with reproach by scholars in the subject.4
But for some fairly dubious authorities relating to its predecessor, the case for
* Lecturer in Law, National University of Singapore, I would like to thank Professor Francis Reynolds for many helpful suggestions he made on an earlier draft.
1. See the commentary on Law Com. No. 196, Rights of Suit in Respect of Carriage of Goods by Sea (1991) by Beatson and Cooper [1991] LMCLQ 196, 199.
2. [1989] A.C. 1112.
3. An example of a statute where relatively clear language is used (“force of law”) and the forum policy addressed is of some moment, in that it strives towards unification of international transport laws by giving effect to an international maritime Convention, is the Carriage of Goods by Sea Act 1971, which was held to be mandatory in The Hollandia [1983] 1 A.C. 565. Unfortunately, English law does not employ any consistent linguistic formula to indicate which statute is mandatory in effect. See Reynolds, The Butterworths Lectures 1990–1991, The Implementation of Private Law Conventions in English Law: The Example of the Hague Rules 1, 12–13.
4. Kahn-Freund, Transactions of the Grotius Society [1953] 39, 61, citing Boissevain v. Weil [1950] A.C.327 as illustration of this unfortunate tendency.
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