Shipping Law and ‘that referendum’. Part Two. Regulations.

With the repeal of the European Communities Act 1972, EU Regulations will cease to be part of UK law. There are three important Regulations of concern to shipping practitioners.

  1. The Brussels Recast Judgment Regulation 1215/2012
  2. The Rome I Regulation on choice of law for contracts
  3. The Rome II Regulation on choice of law i in non contractual matters.

If these are not re-implemented into domestic law, then this we are back to the common law as regards jurisdiction.  When suing a defendant domiciled in the UK it would once again become possible to seek to stay proceedings on grounds of forum non conveniens.

As regards choice of law, we would be back  to the Contracts (Applicable Law) Act 1990 whose provisions are quite similar to those in Rome I. For tort it would be back to the Private International Law (Miscellaneous Provisions Act) 1995 whose provisions contain significant differences from Rome II.

If losing the three Regulations is regarded as non conveniens then Parliament needs to re-enact them into domestic law. Rome I and Rome II could be re-enacted without the need for any action from the remaining 27 EU Member States, although Parliament may choose to amend parts of the Regulations. Possible candidates for amendment of Rome II would be:(a) clarification that it does not apply to torts on the High Seas and; (b)  providing that the applicable  law  where limitation proceedings are brought before the courts of the UK is that of the UK.  Some thought would have to be given as to whether the ECJ should be treated as having any authority as regards interpretation of the domestic legislation which re-enacts the two Regulations.

With the Brussels Recast Judgment Regulation the position is more complex if it is thought to be desirable to maintain a common jurisdiction framework with the remaining EU  Member States. They would need to amend the Regulation to include the UK, perhaps with a simple definition clause ‘Member state includes the United Kingdom’ and similar amendment, mutatis mutandis, with references to a ‘non-Member State’. The UK would also  have to agree to  the authority of the ECJ as regards the domestic legislation reimplementing the Regulation.

An alternative would be for the UK to ratify the 2007 Lugano Convention which tracks the provisions of the 2001 Brussels Regulation  (the ‘unrecast’ version). However, this would require the UK first to become a member of the European Free Trade Associaton, or to obtain the agreement of all the Contracting Parties, the European Community and Denmark, Iceland, Norway and Switzerland.

The UK could also ratify the  Hague Convention on Choice of Court Agreements 2005 (Hague Convention), which came into force as between the Member States and Mexico on 1 October 2015 ( for intra EU matters the Recast Regulation prevails).  The Convention deals with exclusive jurisdiction clauses in favour of a Contracting State and for recognising and enforcing judgments within Contracting States in respect of contracts with such clauses.

In our next blog I shall address some of the shipping related Directives that will cease to have effect following repeal of the European Communities Act 1972.

Applicable law under Rome II Regulation. ‘Damage’ or ‘indirect consequences’.

Article 4(1) of Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II) provides the law applicable to a non-contractual obligation arising out of a tort is “the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur”. On 10 December 2015 in Florin Lazar, (C-350/14), the ECJ has clarified the meaning of this provision as it operated in the context of a road accident with transnational effects.

A traffic accident in Italy resulted in the death of a woman whose close relatives made claims for the loss of a loved person and the loss of a source of maintenance. The claimants were all Romanian. Some were habitually resident in Italy, others in Romania. Under Italian law, the damage resulting from the death of a family member is treated as having been suffered directly by the family member and, in particular, is deemed to amount to an infringement of his personal rights.

The ECJ ruled that their claims could not be characterised as “damage” and constituted an “indirect consequence” of the accident, and that the applicable law was that of Italy where the accident occurred. In reaching this conclusion, the ECJ referred to art. 2 which provides that ‘damage shall cover any consequence arising out of tort/delict’ and to Recital 17 which states that  “in cases of personal injury or damage to property, the country in which the damage occurs should be the country where the injury was sustained or the property was damaged respectively”.