• Conventions and national implementing rules
• Conventions self-executing and non self-executing
• ILO Convention No. 146 of 1976
• International conventions and EU Regulations
• 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.

International conventions and EU Regulations

UNCLOS and Marpol v. EU Directive 2005/35/EC of 7 September 2005

International Association of Independent Tanker Owners (Intertanko), International Association of Dry Cargo Shipowners (Intercargo), Greek Shipping Co-operation Committee, Lloyd’s Register and International Salvage Union v. Secretary of State for Transport of the United Kingdom, Court of Justice of the European Union(Grand Chamber) 3 June 2008, Case C-308/06

In the course of proceedings brought in the Queen’s Bench Division (Administrative Court) of the High Court of Justice of England and Wales by the International Association of Independent Tanker Owners (Intertanko), the International Association of Dry Cargo Shipowners (Intercargo), the Greek Shipping Co-operation Committee, Lloyd’s Register and the International Salvage Union against the Secretary of State for Transport of the United Kingdom concerning the validity of articles 4 e 5 of Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship source pollution and on the introduction of penalties for infringements the Court by decision of 4 July 2006 decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

(1) In relation to straits used for international navigation, the exclusive economic zone or equivalent zone of a Member State and the high seas, is Article 5(2) of Directive 2005/35/EC invalid in so far as it limits the exceptions in Annex I Regulation 11(b) of [Marpol] 73/78 and in Annex II Regulation (6)(b) of [Marpol] 73/78 to the owners, masters and crew?

(2) In relation to the territorial sea of a Member State:

 

(a) Is Article 4 of the Directive invalid in so far as it requires Member States to treat serious negligence as a test of liability for discharge of polluting substances; and/or

(b) Is Article 5(1) of the Directive invalid in so far as it excludes the application of the exceptions in Annex I Regulation 11(b) of [Marpol] 73/78 and in Annex II Regulation (6)(b) of [Marpol] 73/78?

(3)     Does Article 4 of the Directive, requiring Member States to adopt national legislation which includes serious negligence as a standard of liability and which penalises discharges in territorial sea, breach the right of innocent passage recognised in [UNCLOS], and if so, is Article 4 invalid to that extent?

(4)     Does the use of the phrase “serious negligence” in Article 4 of the Directive infringe the principle of legal certainty, and if so, is Article 4 invalid to that extent?

          Held, by the Court of Justice (Grand Chamber) that:

[1] In the absence of a full transfer of the powers previously exercised by the Member States to the Community, the latter cannot, simply because all those States are parties to Marpol 73/78, be bound by the rules set out therein, which it has not itself approved. Since the Community is not bound by Marpol 73/78, the mere fact that Directive 2005/35 has the objective of incorporating certain rules set out in that Convention into Community law is likewise not sufficient for it to be incumbent upon the Court to review the directive’s legality in the light of the Convention.

[2] The validity of Directive 2005/35 cannot be assessed in the light of Marpol 73/78, even though it binds the Member States. The latter fact is, however, liable to have consequences for the interpretation of, first, UNCLOS and, second, the provisions of secondary law which fall within the field of application of Marpol 73/78. In view of the customary principle of good faith, which forms part of general international law, and of Article 10 EC, it is incumbent upon the Court to interpret those provisions taking account of Marpol 73/78.

[3] UNCLOS does not establish rules intended to apply directly and immediately to individuals and to confer upon them rights or freedoms capable of being relied upon against States, irrespective of the attitude of the ship’s flag State.

[4] Article 4 of Directive 2005/35, read in conjunction with Article 8 thereof, does not infringe the general principle of legal certainty in so far as it requires the Member States to punish ship-source discharges of polluting substances committed by ‘serious negligence’, without defining that concept.
‘Serious negligence’ within the meaning of Article 4 of Directive 2005/35 must be understood as entailing an unintentional act or omission by which the person responsible commits a patent breach of the duty of care which he should have and could have complied with in view of his attributes, knowledge, abilities and individual situation.
In accordance with Article 249 EC, Directive 2005/35 must be transposed by each of the Member States into national law. Thus, the actual definition of the infringements referred to in Article 4 of that directive and the applicable penalties are those which result from the rules laid down by the Member States.

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: