The Unification of Private Maritime Law by International Conventions

Abstract

Since ancient times, and until the emergence of modern national states, the governing maritime commerce had been largely uniform in the western world.' In the eighteenth and nineteenth centuries, however, legislative enactments and judicial practices in pursuit of narrowly conceived national interests gradually displaced in various countries the venerable and uniform law of the sea2 and gave rise to sharp conflicts of laws. The movement of goods from country to country was thus hampered at a time when advancing technology and the spreading industrial revolution were about to lead to an expansion of maritime commerce on a world scale. Indeed, large scale international trade has always needed, in addition to other favorable conditions, a certain measure of security and predictability3 with respect to the enforcement of obligations. The diversity of commercial laws prevailing in various parts of the world, however, created an uncertainty as to the existence, size, and content of obligations. Interested parties could not readily ascertain the place where a potential dispute was to be settled, the governing substantive law, and whether a judgment obtained in one country could be enforced in another country. Traditionally, a minimum of certainty has been secured in international commercial relations by resorting to conflict of laws rules. The function of these rules is to refer a given dispute to a definite legal system in accordance with a variety of contacts considered important for the legal relation in question. In commercial transactions the parties have always enjoyed a large measure of autonomy and thus they have been able, by selecting the appropriate contacts, to subject their relations to a desired legal system which eventually furnished the substantive rule of decision.4 While the conflicts method has several advantages, its drawbacks are *LL.B. I950, University of Thessaloniki; M.C.L. I954, University of Chicago; LL.M. I955, J.S.D. I956, University of California, Berkeley; Dr.Jur. I960, University of Cologne. Professor of Law, Louisiana State University. Author, NEGLIGENCE CLAUSES IN OCEAN BILLS OF LADING (I962). 'See GRANT GILMORE & CHARLES L. BLACK, JR., ADMIRALTY 2-8 (1957); 3 JOHN H. WIGMORE, A PANORAMA OF THE WORLD'S LEGAL SYSTEMS 876-9I4 (1928). 2 See FRANCESCO BERLINGIERI, VERSO L'UNIFICAZIONE DEL DIRITTO DEL MARE 20 (1933); 3 ERNST RABEL, CONFLICT OF LAWS: A COMPARATIVE STUDY 238 (2d ed. Bernstein, I964). 3 See 2 ERNST RABEL, CONFLICT OF LAWS: A COMPARATIVE STUDY 367-70 (2d ed. Drobnig, I960); id., Conflict Rules on Contracts, in SUMMER INSTITUTE OF UNIVERSITY OF MICHIGAN LAW SCHOOL, CONFLICT OF LAWS AND INTERNATIONAL CONTRACTS 127, 129 (1949). 4 See, in general, McCartney, The Use of Choice-of-Law Clauses in International Commercial Contracts, 6 WAYNE L. REV. 340 (I960); James, of the Parties on Conflict of Laws Contracts, 36 CHm.-KENT L. REV. 34 (1959); Levin, Party Autonomy: Choice-of-Law Clauses in Commercial Contracts, 46 GEO. L.J. 260 (1957); Neumayer, Autonomie de la volonte et dispositions imperatives en droit international prive des obligations, [1957] REVUE CRITIQUE DE DROIT INTERNATIONAL PRIV? [hereinafter cited as REV. CR. DR. INT'L PR.] 579; Yntema, Autonomy in Choice of Law, I AM. J. COMP. L. 341 (1952).