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Paramount Clause

Hague and Hague-Visby Rules, as enacted
Last updated: 12-Jun-2015

In The Happy Ranger [2001] 2 Lloyd’s Rep 530 per Tomlinson J at para 31:

I also reject the argument that the Hague-Visby Rules are to be regarded as the Hague Rules "as enacted" in Italy so as to be incorporated by reason of the first limb of clause 3 of the specimen bill of lading. Quite apart from the important differences between the two codes, in the first two sub-clauses of clause 3 a clear distinction is drawn between the Hague and the Hague-Visby Rules and their enactment. Italy has repealed its enactment of the Hague Rules and has enacted the Hague-Visby Rules. That is not the situation to which the first sub-clause of clause 3 refers.

In The Happy Ranger [20012 2 Lloyd’s Rep 357 per Tuckey LJ said at para 11:

The Hague Rules are not enacted in Italy so the first sentence of the first paragraph of clause 3 of the bill is not applicable.

In Yemgas Fzco & Ors v Superior Pescadores S.A. Panama [2014] EWHC 971 (Comm) per Mr Justice Males at paras 33,35-37:

33. In circumstances where the Hague-Visby Rules are widely applied all over the world and have been enacted by legislation in many countries, I would be inclined to hold that the expression "the Hague Rules contained in the International Convention for the Unification of certain rules relating to Bills of Lading, dated Brussels the 25th August 1924 as enacted in the country of shipment …" is capable of referring to the Hague-Visby Rules, and (as submitted by Mr Goldstone) that they do so refer in the absence of any contrary indication in the clause. Such a contrary indication would include a distinction drawn elsewhere in the clause between the Hague and Hague-Visby Rules, as in the BIMCO clause and the clause considered in The Happy Ranger. However, there is no such distinction in the clause in the present case.

35. It would seem odd that in a case where English law applies and the parties must be taken to have known that the Hague-Visby Rules would therefore apply compulsorily to a shipment from Belgium, a clause which provides for the application of the Hague Rules as enacted in the country of shipment would be construed as an agreement for the Hague and not the Hague-Visby Rules to apply. Because the Hague-Visby Rules do apply compulsorily anyway, the parties must have realised that a contractual choice of the Hague Rules would be largely ineffective.It would therefore seem implausible to attribute to them such a contractual choice. I would, moreover, be inclined to agree with Colman J in The Marinor that it should make no difference to the application of the clause whether the legislative technique adopted in the country of shipment was to amend the existing Hague Rules legislation in the same way as the 1968 Protocol does or to repeal that legislation and enact the Hague-Visby Rules.

36. However, the point is not free from authority. While in theory the cases reviewed above can all be distinguished as being concerned with different clauses (in particular, clauses which unlike the present case do draw an express distinction between the Hague and Hague-Visby Rules) or with the meaning of a phrase such as "clause paramount" in a charterparty where no specific clause is identified, I do not think that this would be a valid ground of distinction. The decision of Tomlinson J in The Happy Ranger is a decision that the language of the present clause is not apt to refer to the Hague-Visby Rules, while Tuckey LJ’s statement in the Court of Appeal is to the same effect. Even if not strictly binding, these are highly persuasive statements and I should follow them, supported to some degree as they are by the charterparty cases to which I have referred.

37. I conclude, therefore, that the clause paramount at clause 2 of the bill of lading constitutes a contractual agreement that the Hague Rules shall apply, albeit one which the parties must have realised would be largely ineffective in the present case.

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