چکیده:
Lawyers disagree about application of the Rome I to bill of lading .Under English Law, the law applicable is determined according to common law rules in case bills of lading are excluded from the Rome I.Both the Rome I and common law rules recognize the principle of freedom of parties.However, the principle of freedom of parties is restricted under the Hague-Visby Rules and the parties' choice of law could not lessen the liability of the carrier from what provided under the Hague-Visby.Under Iranian Law, the law of the place of conclusion of contract applies to the bills of lading unless the contracting parties are foreign nationals and have subjected their contract to another law.Nevertheless,, considering the restrictions upon the application of foreign law, in accordance with Hague rules to which Iran is a party, parties to a bill of lading issued in a contracting state cannot agree on application of law of other countries which would lessen the liability of carrier from what provided under the Hague Rules.Bill of lading might contain an incorporation clause which incorporates charterparty clauses into bill of lading.Under English Law, the law applicable to the choice of law clause incorporated into bills of lading by reference is the law that is applicable in case of validity of incorporation clause.In Iranian legal system, there is no conflict of laws rule regarding the applicable law to the choice of law clause and courts in each case will seek to discover parties' true intentions.
خلاصه ماشینی:
Determination of the Law Governing the Bill of Lading by Iranian and English Courts Masoud Arbabi Noid Hatami Pour Date of Receipt: 99/01/22 Date of Acceptance: 99/07/08 Abstract Jurists differ regarding the applicability of the Council of Ministers and European Parliament Regulation on the law applicable to contractual obligations (Rome I) to the bill of lading.
First, on one hand, the Hague Convention 2 and its amending protocol 3 Visby, have mandatory regulations regarding the liability of the carrier to the party of the bill of lading; on the other hand, the principle of 4 party autonomy regarding contractual obligations has been accepted in most legal systems, and bills of lading generally contain a choice of law clause.
See: English courts, pursuant to Article 9(2) of the Rome Regulation, declare the choice of law clause in a contract null and void if it reduces the carrier's liability below what the Hague-Visby Rules prescribe.
The English court, since the bill of lading was firstly issued in a country that is a member of the Hague-Visby Convention and secondly, the contract of carriage covered a port in a member country, applied the Hague-Visby Rules to the dispute and declared the choice of law clause null and void based on Article 3, clause 8.
Conclusion Although in the English legal system, the Rome Regulation and the common law rules of conflict of laws have accepted the principle of freedom of will regarding contractual obligations, including contracts for the carriage of goods, any agreement contrary to the mandatory provisions of Hague-Visby is void.
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