• Conventions and national implementing rules
• Conventions self-executing and non self-executing
• ILO Convention No. 146 of 1976
• Rules of interpretation

Conventions and national implementing rules

Scotland

Landcatch Ltd. v. International Oil Pollution Compensation Fund.–Landcatch Ltd. v. Braer Corporation and Others.–The “Braer” (Outer House of the Court of Session, 11 November 1997) ([1998] 2 Lloyd’s Rep. 552 and 1999 Dir. Mar. 931)

          On January 5, 1993 the tanker Braer grounded off Shetland and 84.700 tons of crude oil and 1600 tons of bulk fuel oil escaped or were discharged from the vessel. Landcatch Ltd. brought an action against the Braer Corporation, the owners of the Braer and a separate action against the International Oil Pollution Compensation Fund. In the action against the Fund the pursuers claimed that the Fund was liable in terms of s. 4 of the Merchant Shipping Act 1974 which gave effect to the Fund Convention. Different views were expressed in respect of the interpretation of the statutory provisions and, in particular, as to whether the words “shall be liable” in s. 1 of the Merchant Shipping (Oil Pollution) Act 1971 and in s. 4 of the Merchant Shipping Act 1974 displaced the limitations upon the recoverability of economic loss in the general law.

          Held, by the Outer House of the Court of Session, that:

          (1) The Court should start from the assumption that Parliament has accurately implemented the treaty obligations. It is only if the statutory provisions are obscure or ambiguous that there is a need to resort to the Conventions themselves.

Conventions self-executing and non self-executing

Italy

Corte di Cassazione 6 February 1999, No. 1062, Raffaele Iacomino v. Tirrenia di Navigazione S.p.A. (2001 Dir. Mar. 694)

Raffaele Iacomino sued before the Magistrate of Naples Tirrenia di Navigazione S.p.A. stating that he had been employed by Tirrenia on a date prior to 1982 and that, as from 29 July 1982, when Law 10 April 1981, no. 159 by which ratification by Italy of the International Convention no. 146 adopted on 29 October 1976 by the General Conference of the International Labour Organization had been authorized, he had not been granted, contrary to the provisions of art. 6 of the Convention, the right to enjoy 30 days paid holidays per year of service. The claimant therefore asked that Tirrenia be found liable to pay to him the aforesaid holiday periods. By judgment of 23 December 1993 the Magistrate granted the application. The decision was reversed by the Tribunal of Naples and the claimant applied to the Court of Cassation.

          Held, by the Corte di Cassazione, that:

          (1) The law by which the ratification and execution of an international convention is authorized has the effect of making the provisions of such convention, when ratified, automatically applicable in Italy, when the convention is self-executing, while if the convention is not self-executing they have a function similar to that of norms of principle.

ILO Convention No. 146 of 1976

Italy

Corte di Cassazione 6 February 1999, No. 1062, Raffaele Iacomino v. Tirrenia di Navigazione S.p.A. (2001 Dir. Mar. 694)*
(See the Summary of facts in the section "Conventions self-executing and not self-executing")

          Held, by the Corte di Cassazione, that:

          (1) ILO Convention No. 146 is not self-executing.

Rules of interpretation

Australia

Great China Metal Industries Co. Ltd. v. Malaysian International Shipping Corp. – The “Bunga Seroja” (High Court, 22 October 1998, 1999 AMC 427):

          A consignment of 40 cases of aluminium can body in coils loaded in Sydney on board the m/v Bunga Seroja was partly damaged during the passage from Sydney to Keelung, Taiwan on account of heavy weather. Great China Metal Industries Co. Ltd., to which the property in the goods had passed, claimed damages from the carrier, Malaysian International Shipping Corp. but the claim was rejected by the trial Judge whose decision was affirmed by the New South Wales Court of Appeal. The claimant appealed to the High Court of Australia contending that the exception of perils of the sea did not apply because damage to the cargo resulted from sea weather conditions which could reasonably be foreseen and guarded against. The question to which the submission primarily was directed was the meaning and effect of art. IV r. 2(c) of the Hague Rules.

          Held, by the High Court of Australia, that:

          (1) The interpretation of uniform rules must take into consideration their international origin and must be conducted in such a way as to be consistent with that generally adopted in other countries.

El Greco (Australia) Pty Ltd. v. Mediterranean Shipping Company S.A., Federal Court of Australia, Queensland District Registry, 10 August 2004 (2004 AMC 2886)

          A cargo of posters and prints was shipped in one twenty foot general purpose container on board the MSC Melbourne at Port Botany, Sydney. The bill of lading in the column headed "Marks and Numbers" stated: "Container No. IEAU 2626980" and in the column headed "Description of Goods" so stated: "X20ft FCL/FCL general purpose container said to contain 200945 pieces - posters and prints".
When packed into the container the goods had been made up into about 2.000 packages.
          The goods arrived at their destination in Greece, after transhipment in Antwerp on board the Aquitania, in damaged conditions and the owners of the goods, El Greco (Australia) Pty Ltd., brought an action against the carrier, Mediterranean Shipping Co. S.A., in the Federal Court of Australia. By a decision of a single judge of the Federal Court the liability of the carrier was assessed on the basis of the value of the goods at destination, that was found to have been $ 63,750. The claimants appealed and contended that judgment should have been given in the sum of $ 883,390. The carrier cross-appealed stating that pursuant to article 4.5(c) of the Carriage of Goods by Sea Act 1991, identical to article 4.5(c) of the Hague-Visby Rules, the limit should be applied with reference to the container.

Held, by the Federal Court, that: