English Courts

The expressed intention in a bill of lading as to the law applicable, will be given effect to even if the result be to avoid the application of a law of the country of issue of such a bill of lading compulsorily importing certain terms into it. If the parties have included an arbitration clause fixing the place where the arbitration is to take place this is a strong and in many cases, decisive indication that the parties wished the contract to be governed by the law of that place but it is not conclusive. The fact that a term of the contract is valid under one system of law and invalid under another is a pointer to the system of law under which it is valid being the proper law of the contract. The parties express or inferred choice of law could be rendered null and void if the dispute came before the English Courts, where the effect of the choice of law would have been to render the carrier’s liability less than that which would have been imposed by the Hague-Visby Rules. In The Moruiters (1983) a bill of lading expressly applied “the law of Netherlands in which the Hague Rules are incorporated”. The Amsterdam Court was to have exclusive jurisdiction. The House of Lords ruled that the choice of law provision purported to lessen the carriers’ liability since under the Hague-Visby Rules applicable in the United Kingdom the liability would have been higher; the clause was therefore null and void in accordance with article III, rule 8 of the Rules.