Saturday, August 4, 2012

Clause Paramount. Question of Dominance


Any clause in a contract is always important. But what happens when the Clause itself has a name that already makes prominent? We refer to "Clause Paramount" (Paramount Clause) whose use is so widespread in the maritime bills of lading (bill of lading) and in the charter party (charter-party) incorporating terms and conditions of a bill of lading.

We will give some brief notions of both the appearance of these clauses in the context of international shipping and its use in order to get it finally to an explanation of them.



Premise one: we are in an area where what is sought is the balance between the interests of shippers and carriers.

Premise Two: In order to achieve this balance has come along in history, conventional solutions under which what is clearly defined, is a regime of limited debt liability of the carrier, this is , born unlimited liability and what is does is set the scope of debt that will come of it.

Premise Three: Paramount with Clause is intended to apply the aforementioned conventional solutions whether by law or by agreement of the parties, in addition to those forwards can be a single standard or multiple, depending on the circumstances of the case>> ;

The immediate predecessor of Clause Paramount is located in the events in late nineteenth century that a movement is promoted in order to regulate in a uniform manner Line Transport International. The aim was basically to establish a regime, at least non-derogable, debt, liability of shipowners.

Emerged as the first exponent of the movement in the U.S. above the "Act of Congress, 1893, (Harter Act) An Act relating to Navigation of Vessels, bills of lading, and to Certain Obligations, Duties and Rights in Connection with the Carriage of property" defining its scope as "...... any vessel transporting merchandise or property from or between ports of the United States of America and foreign ports ... ... .. " (The translation is ours).

However, the scope of the Harter Act, because the vast majority of lawsuits on the matter taking place in the country of unloading, it was obvious that any litigation brought before the British courts would not contemplate the scope of the Harter Act, applicable to substance of English law process.

As a way to defend themselves in this situation the American shippers, using the Harter Act itself, came the power to force U.S. carriers to include in their knowledge, the "Harter Act Clause" who came to bring the relationship, in terms of responsibility the shipowner, the law so many times named

Anyway the intended application outside U.S. territory of the mandatory provisions of the Harter Act and particularly in British territory did not have a significant importance.

Notwithstanding the foregoing, the Harter Act Clauses were a model for laws appeared later and a clear forerunner of Paramount Clauses.

Comes to stand before the Brussels Convention of August 25, 1924 entitled "International Convention for the Unification of Certain Rules relating to bills of lading" inspired by the Hague Rules (developed by the International Maritime Committee in 1921 ) indifferently called, both by name and by the Hague Rules expression.

Once approved the 1924-Convention which could be transposed into national law either directly or through enactment of law-and even before many national laws required it, specifically, that all bills of lading issued, within the scope of them, they had inserted a statement that they were subject to them. We, therefore, with the appearance of Clause Paramount by law. As simple examples we can cite the following:

The Carriage of Goods by Sea Act of the United States, 1936, specified that "any bill of lading ... ... ... ... ... ... ... that is because of a contract for international carriage of goods by sea from ports in the United States contain a statement that is governed subject to the provisions of this Act "(The translation is ours). While the failure to insert the clause did not imply nullity.

In the "Carriage of Goods by Palestinian Sea Ordinance, 1926, inter alia, expressly stipulated that" the provisions contained herein shall apply to contracts of transport in the absence of a Clause Paramount, "although that clause was required by the Ordinance itself .

Thus, as was the case with the Harter Act seen Clauses intent of the legislators was to procure the applicability of national law when the case was within the scope of it, in those cases they had to hear the case in foreign courts. It is seen clearly intended to protect the national interest front loader possible interference that would result from enforcement of a forum different from their own.

Given the above we now have to stop and observe the Paramount Clause arising from self-will of the parties in those cases where the transport in question exhaust the scope of existing conventional solutions which can not be subject to this Article for space (already named The Hague Rules, the Rules of the Hague-Visby and Hamburg Rules the recent Rotterdam Rules) and / or laws that incorporate them.

This category of Paramount Clause is of greater importance than seen before clause (by law) as it is extremely useful to circumvent the effects of power as long as the wording is adequate (almost always in English, sometimes in language French, often more than twenty lines, devoid of points and often, being all gerunds, commas and conjunctions linking phrases with others, creating with all this an extremely convoluted, invite the reader to study a model in any page shipping a web-) the many problems that exist, and in particular, apart from those who comment on later, the derivatives of the concurrence of several conventional solutions and multiple legal solutions that although the principles should be governed by the Uniform Law Conventional sometimes very different scales have been applied to calculate the debt liability.

By virtue, we see that if at first the main purpose of this category of clause whose name translated into Spanish would be "supreme, predominant," was the contract to incorporate the provisions of the Brussels Convention, and even laws before it, in order to compel the courts of the countries that were not the forum or the contracting parties to apply these treaty provisions, with the passage of time the initial purpose was expanded considerably, since by this Clause Paramount calls the application is therefore of standards (or part of your text) whose scope does not cover the case determined by a specific transport, as existing conventional solutions in the field in the analogous case of a transport does not come within the scope of any rule.

We can say therefore that the Clause Paramount intends to extend the application of the debt liability with mandatory rules is contained in the Uniform Conventional.

Julio Duran Araguás

Soler & Duran Firm

Member of Eurojuris Spain

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