courts. English courts recognise the international character of a convention and normally steer clear of principles and precedents found in domestic law.27 A number of international conventions include provisions on their interpretation, and the Hamburg Rules is one among these. Article 3 provides that ‘in the interpretation and application of the provisions regard shall be had to its international character and to the need to promote uniformity’. The Hamburg Rules are available in Arabic, Chinese, English, French, Russian and Spanish,28 all texts being equally authentic (Art 34(2)). Availability of authentic texts in six languages, other than for political reasons, may also be motivated by the need to promote uniformity. After all, if there were problems in understanding the text in one language, reference to the text in another language would aid to resolve the ambiguities. However, this is based on a number of debatable assumptions. For instance, it assumes that there is parity between legal concepts, that an exact translation is possible and, if so, that the text is an exact translation.29 The wisdom of giving equal status to texts in six different languages is highly questionable, since equivalence of concepts is not always achieved through equivalence in words. As Simmonds correctly observes, ‘problems of interpretation will be exacerbated also by the fact that six language texts are equally authentic’.30 He also notes that a cursory glance of the Spanish, French and English texts indicates that problems may occur in a linguistic comparison.31 Difficulties with multilingual treaties, however, are not insurmountable, and theVienna Convention on the Law of Treaties, 1969 in its Arts 31–3332 provides some guidance on treaty interpretation. The general rule is that a treaty is to be interpreted in accordance with the ordinary meaning of the terms and according to its object and purpose. However, where on the application of the general rules terms are ambiguous or obscure, an acceptable degree of uniformity will be achieved if judges look to the interpretation of other jurisdictions.This, of course, requires decisions in different jurisdictions to be reported as and when available. UNCITRAL has established a system for gathering decisions on its texts through national reporters.33

Scope of application

The Hamburg Rules come into operation where:

•the contract for carriage is for carriage by sea and

•an element of internationality is present in that the contract of affreightment is between two different states.

It is not, however, a necessary condition that the different states involved in the contract of carriage are all contracting states. It is sufficient if one of the operations involved in the handling

27See Sturley, ‘International uniform laws in national courts: the influence of domestic law in conflicts of interpretation’ (1987) 27 Vanderbilt Journal of International Law 729 for a US viewpoint.

28These are the official languages recognised by the UN.

29See Shelton, ‘Reconcilable differences? The interpretation of multilingual treaties’ [1997] Hastings International and Comparative LR 611, at pp 621–2, for an illustration of how inconsistencies may be introduced and left in multilingual treaties deliberately by negotiators.

30‘The interpretation of the Hamburg Rules convention: a note on Art 3’, in Mankabady (ed), The Hamburg Rules on the Carriage of Goods by Sea, 1978, Sijthoff, at p 118.

31See also Peyrefitte, ‘The period of coverage of maritime transport – comments on Art 4 of the Hamburg Rules’, in Mankabady (ed), The Hamburg Rules on the Carriage of Goods by Sea, 1978, Sijthoff.

32The text of this convention is available at www.un.org/law/ilc.

33UNICITRAL Yearbook, Vol XIX, 1988, at pp 15, 16, 130–36. So far, the abstracts of well over 300 decisions pertaining to the United Nations Sales Convention, Model Law on Arbitration and the Hamburg Rules are available. The abstracts are also available at www.uncitral.org. Jurisprudence on the interpretation of the Hamburg Rules is also available on the Comité Maritime International website at www.comitemaritime.org.

of the goods takes place in a contracting state. So, if the port of loading is located in a contracting state (Art 2(1)(a)) or if the port of discharge is located in a contracting state (Art 2(1)(b)), the Hamburg Rules will be applicable. This means that both inward shipments and outward shipments from a contracting state are subject to the Hamburg Rules. For instance, where cargo is shipped from state X (a contracting state) to state Y (a non-contracting state), the Rules will apply. Similarly, where cargo is shipped from state Y (a non-contracting state) to state X (a contracting state), the Rules will be triggered. In Compagnie Sénéglaise d’assurances et de réassurances CSA and 27 Other Companies v Roscoe Shipping Co, the Captain of the Ship ‘World Appolo’, and the Steaming Mutual Underwriting Association,34 a contract of carriage from a port in Thailand to Dakar in Senegal attracted the application of the Hamburg Rules since the port of discharge was situated in a state that had ratified the Rules.35

Application of the Hamburg Rules to inwardand outward-bound shipments is a major advance on the Hague-Visby Rules, which apply only to outward shipments from a contracting state, unless the state implementing the Rules extends its operation to inward shipments.36 Article 2(1)(b) is likely to establish Hamburg Rules in the international maritime scene, despite of its unpopularity among shipowning countries.

Article 2(1)(c) extends the applicability of the Hamburg Rules where an optional port situated in a contracting state and named in the contract of carriage becomes the actual port of discharge. Article 2(1)(d), like Art X(a) of the Hague-Visby Rules, provides for the applicability of the Hamburg Rules where the bill of lading or document evidencing the contract of carriage is issued in a contracting state.

An element of contact with a contracting state as specified in the preceding paragraphs is not always necessary to bring a contract of carriage within the ambit of the Convention. A contract may be subject to the Hamburg Rules where the parties expressly stipulate that the provisions of the Hamburg Rules, or the laws of a state giving effect to the Hamburg Rules are to govern the contract of carriage.37 Unlike the Hague-Visby Rules, the operation of the Hamburg Rules is not dependent on the issue of a bill of lading or a similar document of title.The provisions of the convention are applicable to all contracts of carriage. They, therefore, govern waybills, short sea notes and other contracts

of carriage used in the trade (Art 2(1)).

Charterparties are excluded from the ambit of the Hamburg Rules, except where bills of lading are issued pursuant to a charterparty (Art 2(3)). Accordingly, the convention is applicable only where: (1) the bill of lading is issued to the shipper who is not the charterer or (2) the bill of lading issued under a charterparty to the charterer is subsequently endorsed by him to a third party. In other words, the question of whether the Hamburg Rules apply to a bill of lading issued under a charterparty is to be determined in terms of the identity of the holder.

It is not clear whether the Rules will apply to a bill of lading issued by the charterer to a shipper and is subsequently endorsed by him to the charterer. It could be argued that, since the

34UNCITRAL A/CN.9/SER.C/ABSTRACTS 11, 2 December 1996 (Case 159) Commercial Court of Marseilles (France); 1996 Rev Scapel 51–55.

35However, see OceanView Shipping Ltd and Others v Cargill International Antigua and Others 1998 DMF 588 as cited at http://comitemaritime. org/jurisp/ju_hamburg.html. The cargo was carried from Burma to Guinea, and proceedings were commenced at the Tribunal de Commerce of Paris, who affirmed their jurisdiction on the basis that the bill of lading was issued in Paris. The Tribunal held that the bill of lading attracted the application of the Hamburg Rules since Guinea (place of discharge) was a party to the Rules. On appeal, the Cour d’Appel of Paris overturned the judgment on grounds that France had not ratified the Hamburg Rules. The fact that the port of discharge was located in a state party to the Hamburg Rules did not matter. See also Brendani AB v Magazzini Genrali and Frigoriferi SpA Core di Cassazione 14 February 2001, No 2155 (unreported but cited at http://comitemaritime.org/jurisp/ju_ hamburg.html) where the Supreme Court held that, even though the Italian Parliament had authorised the ratification of the Hamburg Rules (Law 25 January 1983 No 40), they could not be applied to the dispute since the ratification had never taken place.

36The US, Japan and Belgium have extended the application of the Rules to inward shipments.

37A similar provision is found in Art X(c) of the Hague-Visby Rules.

charterer has acquired the bill of lading as an indorsee, it should be subject to the Rules. A literal reading of Art 2(3), however, suggests that the bill of lading will be subject to the Rules only where the holder is not the charterer.

The Hamburg Rules also govern ‘volume’ or ‘tonnage’ contracts – that is, contracts of carriage where the carrier agrees to a future carriage of goods in a series of shipments during an agreed period (Art 2(4)). However, where such an agreement is in the form of a charterparty, they will be subject to Art 2(3).

The Hamburg Rules cover all kinds of cargo, including live animals and deck cargo. There are, however, specific provisions relating to deck cargo (Art 9) and live animals (Art 5(5)). The carrier is entitled to carry the goods on deck only if such carriage is in accordance with an agreement with the shipper or with the usage of the particular trade or is required by statutory rules or regulations. Where the carrier and the shipper have agreed that the goods shall or may be carried on deck, the carrier must insert in the bill of lading or other document evidencing the contract of carriage by sea a statement to that effect. In other words, deck cargo will be regarded as normal cargo in the following situations (Art 9(1)):

•If there is usage to do so. Usage will depend on prevalent trade practices – for instance, containers are deck cargo due to current shipping practice.

•If there are statutory rules or regulations to that effect.This covers situations where statute may require certain kinds of cargo (e.g., explosives, corrosive chemicals) to be carried on deck.

•If there is an agreement. Where there is an agreement, this must be inserted in the document relating to the carriage of goods by sea (Art 9(2)). This perhaps is the most problematic of the three situations circumscribed by Art 9(1) since the form the agreement must take is left unspecified. Does the agreement have to be express and appear on the face of the bill of lading or will a liberty clause allowing the carrier to carry the goods on deck qualify as sufficient to constitute an agreement for the purposes of this provision? It may be possible to argue that a liberty clause is an agreement since the Rules do not use the words ‘express agreement’ in relation to Art 9(1), whereas they do in relation to Art 9(4), which suggests that the drafters were aware of the conceptual distinction between agreement and express agreement.

Where goods are carried on deck in circumstances stipulated by Art 9(1), the carrier can take advantage of the limitation of liability set out in Art 6 of the Rules. The carrier, however, will lose this entitlement where:

•cargo is carried on deck in the absence of usage or agreement or statutory rules and it can be shown by the claimant that ‘loss, damage or delay in delivery resulted from an act or omission of the carrier done with the intent to cause such loss, damage or delay, or recklessly and with knowledge that such loss, damage or delay would probably result’ (Art 8); or

•cargo is carried on deck contrary to an express agreement to carry below deck – deemed to be an act or omission within the meaning of Art 8 (Art 9(4)).

Historically, live animals were excluded due to their peculiar nature. There was no way of guaranteeing that the animals would be delivered in the condition they were received – that is, alive. The Hamburg Rules have deviated from the norm in making their carriage subject to them. The carrier, however, is not liable, if he can show that he has complied with the instructions given by the shippers but the damage, loss or delay in delivery was caused by the special risks inherent in the kind of carriage (Art 5(5)). Presumably, special risks will be determined by the type of animal carried and the risks generally present in the transportation of live animals by sea. In the absence of a definition, there is some scope for interpretation of live animals – for instance, are viruses and bacteria live animals?

Carrier’s responsibilities and liabilities

Definition of ‘carrier’

The Hamburg Rules make a distinction between carrier and actual carrier. The distinction was introduced to simplify the process of identifying the party against whom proceedings are to be brought so that the difficulties encountered by the claimant under the Hague-Visby Rules could be avoided.

A carrier is ‘any person by whom or in whose name a contract of carriage of goods by sea is concluded with any shipper’ (Art 1). This would include the shipowner, the charterer, the freight forwarder, or any transport operator who has entered into the contract of carriage. It is, therefore, not essential for the contracting carrier to be personally involved in the carrying of the cargo.

An actual carrier, conversely, is ‘any person to whom the performance of the carriage of the goods or of part of the carriage has been entrusted by the carrier, and includes any other person to whom such performance has been entrusted’ (Art 1).

Although the Rules draw a distinction between carrier and actual carrier for the purposes of liability, the contracting carrier remains liable for the entire voyage (Art 10). The carrier is, therefore, liable for the acts and omissions of the actual carrier and of his servants and agents acting within the scope of their employment in relation to the carriage.

This general rule, however, need not apply where there is through carriage. So, where transhipment is envisaged, the carrier can exclude liability for loss, damage or delay in delivery which takes place while the goods are in the charge of the actual carrier, provided this is explicitly stated in the document of carriage (Art 11(1)). The burden of proving that the loss, damage or delay in delivery was caused by an occurrence while the goods are in the hands of the actual carrier is on the carrier.

Period of responsibility

Article 4(1) states that:

... the responsibility of the carrier for the goods under this convention covers the period during which the carrier is in charge of the goods at the port of loading, during the carriage and at the port of discharge.

The precise moment of the applicability of the Rules is calculated not from the time the goods are placed on board ship but is determined from the time the carrier can exercise the right of control and supervision of the goods. The carrier is regarded as being in charge of the goods when he takes over from the shipper, or a person acting on his behalf or an authority or third party to whom the goods must be handed for shipment (Art 4(2)(a)). The carrier is regarded as having delivered the goods when he hands them over to the consignee38 or places them at the disposal of the consignee in accordance with the contract, or by handing over the goods to an authority or third party to whom the goods must be handed over (Art 4(2)(b)).

The question of when the goods are taken over or delivered by the carrier will presumably be decided from the terms of the contract. However, it is not clear from Art 4(2) whether the carrier will be deemed to be in charge of the goods if the goods are handed to the carrier’s agent. A similar

38In Compagnie Sénéglaise d’assurances et de réassurances CSA and 27 Other Companies v Roscoe Shipping Co, the Captain of the Ship ‘World Appolo’, and the Steaming Mutual Underwriting Association, the Commercial Court of Marseille found that the carrier was deemed to have delivered for the purposes of Art 4(2)(b) when the hatches were opened and the stevedoring company appointed by the consignee began discharge operations: UNCITRAL A/CN 9/SER C/ABSTRACTS 11, 2 December 1996 (Case 159).

Table 9.1: Material differences between the Hague regime (Hague and Hague-Visby rules) and the Hamburg Rules

Table 9.1: Material differences between the Hague regime (Hague and Hague-Visby rules) and the Hamburg Rules (Continued)

Table 9.1: Material differences between the Hague regime (Hague and Hague-Visby rules) and the Hamburg Rules (Continued)

*Note: The Rotterdam Rules have innovative provisions on rights of control, transfer of rights and delivery, see Chapter 8.

This provision will be of help only where it is possible to distinguish the various causes of the damage and the extent to which each cause is directly responsible for the damage. In practice, it may not always be possible to measure the degree to which a particular cause is directly responsible for the end result.

The burden of proof requirement adopted in Art 5(1) in relation to carrier liability means that the onus is always on the carrier to show that the loss, damage or delay occurred despite all measures reasonably taken by him, his servants or agents to avoid the occurrence and its consequences. Only in the event of damage that has been caused by fire is the burden shifted to the claimant under Art 5(4), which states that the carrier is liable. So the carrier will be liable for loss or damage due to fire, if the claimant can show that it arose from the fault or neglect on the part of the carrier, his servants or agents or resulted from the fault or neglect of the carrier, his servants or agents, in taking all measures that could reasonably be required to put out the fire and avoid or mitigate its consequences.

As apparent from Art 5(1), the carrier is liable for delay in delivery. However, when does delay in delivery occur? The obvious answer would be to look at the contractual terms to determine the issue. Article 5(2) does this precisely by drawing attention to the express contractual terms. If there is agreement that delivery is to take place at Port X between the beginning and the end of October 2009 failure to deliver within this period would constitute delay in delivery. However, it is possible that parties may not have agreed on the delivery period. In this event, according to Art 5(2), the time of delivery is to be established by what a diligent carrier would regard as reasonable taking the circumstances into account. The formula adopted by the Hamburg Rules has been cited with approval in the Seoul District Court in the Republic of Korea, even though it is not a signatory to this Convention. In Song Dong Geun v Geumchun Maritime Shipping,44 the shipper (seller) sold fabric to the buyer (the importers), which was sent by sea under a bill of lading.The importers claimed for delay in delivery of the fabric, and the seller (plaintiff) brought an action against the carrier (defendant), stating that they should be responsible for the damages. In considering Art 788(1) of the Commercial Code of Korea, the Court concluded that it did not provide a ‘clear standard’ by which to determine the issue of delay in delivery. However, it went on to state that Art 5(2) of the Hamburg Rules provided an ‘internationally reasonable standard’.45

Carrier’s exceptions

The Hamburg Rules, along with the carrier’s duties in relation to seaworthiness and cargo management,46 also drop the long list of exceptions, including the controversial navigation exception,47 that are to be found in the Hague Rules. Article 5 makes reference to specific instances where the special provisions become relevant. As far as clauses, such as ‘perils of the sea’ and ‘act of God’, normally found in bills of lading are concerned, these will no doubt be raised where relevant by the carrier under Art 5 when trying to show that he took all measures required of him to avoid the occurrence and its consequences.

4428 August 2002. Abstract available on CLOUT database (A/CN.9/SER.C/ABSTRACTS/70) Case 745.

45This case is interesting since it shows that courts in non-signatory countries are taking note of the Hamburg Rules.

46See Arts III(1) and (2) of the Hague and Hague-Visby Rules.

47The CMI during the conference stressed the importance of retaining the negligence in navigation exception on the grounds that it made economic sense to do so since to remove it would result in an increase in insurance premium and hence freight charges. It was also suggested that retaining this exception would benefit those developing countries in the process of building maritime fleets. According to William Tetley, the error in navigation and management of the ship exception is a ‘sacred cow’ to shipowners, their associations and P&I clubs. Interestingly, this exception was included in the CMI/UNICITRAL Preliminary Draft Convention on Carriage of Goods by Sea, thus endorsing Tetley’s observation. This, however, is not the case in the adopted version of the Rotterdam Rules.

Increasing responsibility

The carrier is at liberty to increase his responsibilities and obligations (Art 23(2)). The carrier’s special agreement with the shipper in respect of obligations not imposed by the convention, or waiver of rights conferred on him by the convention, affects the actual carrier only to the extent that he has agreed to them expressly and in writing (Art 10(3)). Regardless of whether or not there is agreement between the carrier and the actual carrier, the carrier remains bound by any of the obligations or waivers that are a consequence of a special agreement between him and the shipper.

The carrier by agreement with the shipper can exceed the limits of liability set out by Art 6(1) of the Hamburg Rules (Art 6(4)).

Carrier’s rights

As stated earlier, the Hamburg Rules are more of a self-contained code in making specific provisions to clarify some of the rights that the carrier may have against the consignee under the contract of carriage.

Freight

The Hamburg Rules do not make any general statement regarding the shipper’s duty to pay freight under the contract of carriage. Generally, where goods are shipped under a bill of lading, the shipper is normally regarded as liable for freight. However, where the consignee is responsible for paying the freight, this must be indicated on the bill of lading (Art 15(1)(k)).Where the bill of lading does not indicate that freight is payable by the consignee or the extent to which the consignee is responsible for the payment of freight, it will be regarded as prima facie evidence that no freight is payable by the consignee. On transference to a third party taking in good faith, the evidence will be regarded as conclusive and proof to the contrary by the carrier will be inadmissible (Art 16(4)).

Demurrage

It seems from Art 16(4) that any demurrage incurred at the port of loading and payable by the consignee must be stated on the bill of lading. Where such a statement does not appear on the bill of lading, it will be regarded as prima facie evidence that no demurrage is payable by the consignee. Where the bill of lading is transferred to a third party in good faith, proof to the carrier will be inadmissible (Art 16(4)).

General average

The Rules do not prevent the application of the provisions in the contract of carriage or any national laws on the adjustment of general average. However, if the carrier is liable to the consignee under the Rules, he cannot ask for contribution in general average from the consignee (Art 24(2)).

Liability limits

The carrier is liable for loss resulting from loss or damage to the cargo, as well as delay in delivery (Art 5) – that is, when the goods have not been delivered at the port of discharge within the time expressly agreed upon in the contract of carriage (Art 5(2)). In the absence of an express agreement, the time of delivery is that which would be reasonable to expect of a diligent carrier having regard to the circumstances of the case.

Limitation period

The Hamburg Rules impose a two-year limitation period for bringing any action relating to carriage of goods, whether it is a judicial or an arbitration proceeding (Art 20(1)).The adoption of a two-year period is a response to the criticism raised against the relatively short period imposed by Art III(6) of the Hague-Visby Rules.The one-year period of the Hague-Visby Rules was regarded as placing the cargo owner under an extremely difficult position since it may not always be possible, at a practical level, to establish the identity of the person against whom judicial proceedings are to be instituted.

It is arguable whether the two-year limitation period introduced by the Hamburg Rules is really necessary since the matter of establishing the identity of the party against whom proceedings are to be brought under the Rules is easier.

Shipper’s responsibilities

Accuracy of particulars

The shipper is deemed to have guaranteed to the carrier the accuracy of particulars provided by him regarding the general nature of the goods – that is, details about marks, number, weight and quantity that are inserted in the bill of lading.Where the details provided are inaccurate and, as a result of which, the carrier suffers loss, the shipper must indemnify him for the losses suffered. The shipper’s duty to indemnify subsists even where the bill of lading is transferred to a consignee or indorsee (Art 17).

Dangerous goods

Where the shipment consists of dangerous goods, the shipper is under an obligation to inform the carrier or actual carrier of the dangerous nature of the goods and the precautions that need to be taken in relation to the goods. Further, he is required to mark or label these goods in a suitable manner (Art 13(1)), and, where a bill of lading is issued, the particulars about the dangerous nature of the goods must be included in the document.

The shipper is liable for any loss to the carrier where he has failed to furnish the required information and the carrier or actual carrier does not otherwise have knowledge of the dangerous character of the goods (Art 13(2)(a)). It would be easy to establish knowledge on the part of the carrier where the goods are obviously dangerous – for instance, where the cargo contracted for carriage is dynamite – or commonly known to be dangerous in the trade. Where dangerous cargo is carried without the carrier’s knowledge, he can unload, destroy or render it innocuous, depending on the circumstances without incurring liability to the shipper (Art 13(2)(b)).

Where the carrier consents to the carriage of dangerous goods, he may unload, destroy or render them innocuous, if they become an actual danger to life or property. The Hamburg Rules do not place him under an obligation to pay compensation, except where there is an obligation to pay general average or where he is in breach of the provisions of Art 5 (Art 13(4)).

Presumably, the shipper will be liable to the carrier for freight and any other costs he incurs in dealing with the dangerous cargo.

Shipper’s undertaking to indemnify carrier

In practice, shippers generally require clean bills of lading from the carrier, even though he may have had no reasonable means of checking the accuracy of the information entered by the shipper in the bill of lading. A carrier may, however, agree to issue a bill of lading with no reservations on an understanding from the shipper that he will be indemnified should he suffer any losses as result of issuing such a bill. Such agreements are valid between the carrier and the shipper, provided the carrier has no intention to defraud a third party (Art 17(3)).The shipper’s agreement to indemnify the carrier for his losses, however, is void against any third party (Art 17(2)).

Choice of forum

Judicial proceedings

Unlike the Hague-Visby Rules, the Hamburg Rules provide for choice of forum. Judicial proceedings can be initiated, at the option of the claimant, in a court that is competent according to the law of the state and within its jurisdiction, where one of the following places is located:

•the principal place of business of the defendant (Art 21(1)(a));

•the place of habitual residence of the defendant in the absence of a principal place of the defendant (Art 21(1)(a));

•the place where the contract was made, provided the defendant has a place of business, branch or agency through which the contract was made (Art 21(1)(b));

•the port of loading (Art 21(1)(c));

•the port of discharge (Art 21(1)(c));

•the place designated by the parties to the contract of carriage (Art 21(1)(d)) or

•the courts of any port or place of a contracting state where the carrying vessel or vessel for that ownership may have been arrested in accordance with the rules of that state and of international law (Art 21(2)(a)).

The Hamburg Rules give a wide choice of fora to the claimant, and it is inevitable that his choice will be guided by what is convenient for him, and tactics – for example, whether the choice of forum is likely to cause discomfort in terms of time and money to the defendant.51 An issue that is likely to arise in this context is whether the defendant can invoke the doctrine of forum non conveniens to stay proceedings in the jurisdiction chosen by the claimant. The answer to this will depend largely on the interpretation of the words ‘institute proceedings’52 in Art 21. The words seem to suggest that a court seised of a case can decline jurisdiction on the ground of forum non conveniens.

Article 21 seems to undermine the aims of the Rules – namely, uniformity, certainty and better protection of the cargo owner, considered by the drafters as the weaker party. The issue of staying proceedings is dependent on the procedural rules of a forum, and the views on forum non conveniens are not uniform across different jurisdictions. For instance, the doctrine is a recent import into English law. Given the divergencies, the emphasis in Art 21 on institution of proceedings is open to exploitation by the parties to contract of carriage.

The Hamburg Rules preserve the parties’ agreement to choose a forum as long as the agreement is made after a claim has arisen (Art 21(5)).

Arbitration

The parties may, by agreement that is evidenced in writing, provide that any dispute that arises in relation to the contract of carriage be referred to arbitration (Art 22(1)). The parties may agree to submit to arbitration subsequent to a claim arising under the contract of carriage by sea (Art 22(6)).

The Hamburg Rules, once again, give a wide range of choice of arbitration forum ranging from the place of business of the defendant, the habitual residence of the defendant, the port of loading or discharge to a place designated in the arbitration agreement.53

51See Chapter 16.

52See Chapter 10 for the confusion raised by the use of the word ‘brought’ in the Warsaw Convention 1929 relating to carriage by air.

53See Art 22(3).