Maritime Contracts and Private International Law: Between Party Autonomy and Uniform Law

Maritime contracts stand out as a field characterized by the driving role of uniform law. The process of unification of the law governing contracts of carriage of goods by sea started in the Middle Ages, in the form of collections of th the usages of the trade, developed by merchants in the field of maritime traffic. It has been in more modern times, starting form the end of the XIXth Century, that the process of unification of the rules of substantive law in the field has taken the form of international conventions, due, at first, to the leading role of private institutions, such as the International Law Association and the Comité maritime international, and, at a later stage, of inter-governmental organizations and related bodies, such as UNCITRAL. As the author notes, the adoption of international conventions bearing uniform rules of substantive law in the field could not lead to a setting aside of the conflict of laws problem, due to the limits inherent in both the substantive and personal or territorial scope of application of international law conventions. Problems of coordination accordingly arise between uniform law and private international law conventions, or, as in the peculiar case of EU Member States, EU Regulations. These, and especially, in matters of contract, the Rome I Regulation not less than its predecessor, the Rome Convention of 1980, are based on party autonomy as a general rule for finding the applicable law. The author discusses the role left to aprty autonomy in such a scenario largely dominated by uniform law conventions, which, within the limits of their scope of application, tend to apply directly in their Contracting States, independently of the rules of private international law, arguing that the scope for party autonomy, both in terms of designating the applicable law, and of establishing the substantive terms of the contract, is likely to prove larger in those maritime contracts, such as those based on a charter party, where a substantially equal bargaining power is likely to exist between the parties, as a difference form liner terms contracts, normally incorporated in a bill of lading, or, rather, in a sea waybill, where generally shippers are expected to accept the contractual terms unilaterally set out by the carrier.