Which Law Applies to the contract using the example of FENEX conditions and CMR?

In order to define which law will govern the subject contract, it is necessary to analyse the Rome I Regulation. Pursuant to the article 3 of the Rome I Regulation parties have a freedom to choose law that will govern their contract. Since the parties have chosen English law, it will govern their contract. Also, parties stipulated the FENEX-conditions which are also applicable. However, article 22 (1) of the FENEX-conditions prescribes that the contract to which FENEX-conditions apply shall be governed by Dutch law. Since there is ambiguity in the terms of the contract over the question which law will govern the contract, the rules of interpretation should be invoked and the real intention of the parties should be determined. The conclusion would be very likely that parties intended to conclude contract governed by English law, including provisions of FENEX-conditions since they are pro-forwarder (and stipulated by Shipit), but unintentionally did not omit article 22 (1). Furthermore, the mandatory provision of the Community law shall apply.

When deciding over the qualification of the contract, judge will take into account further elements:

1. (1) terms of the contract including the nature of the instructions given,

2. (2) any description used or adopted by the parties in relation to the contracting party’s role,

3. (3) the extent and performance of any previous course of dealing including the manner of performance

4. (4) the nature and basis for charging and to ascertain whether the forwarder charged freight as the cost of carriage or commission for agency services

5. (5) the nature and terms of any documentation issued and the status of that documentation. Furthermore, it is relevant an ECJ’s judgment in which the court gave a guideline to determine when the contract is actually a carriage contract. ECJ stated that in the carriage contract the main purpose of the contract is not merely to make available a means of transportation, but the actual carriage of goods.

Pursuant to the article 2(1) of the CMR, if the cargo is unloaded from the vehicle that is using ro-ro transport, the CMR is applicable, and the art. 17 of CMR will regulate liability regime. In such case, pursuant to the article 2(1) of CMR, the damage caused by a choppy sea is an event which occurs in case of carriage by sea, and therefore, CMR is not applicable. It is an event that is typical to the other means of transport The Hague-Visby Rules apply since the Belgium is contracting state(assumption that the bill of lading is issued). Carrier is excluded from liability according to the art. 4 (2c) of Hague-Visby Rules. When the damaged crates in the stack are not loaded on the truck, the CMR does not apply. The carrier is liable for the damage that occurs between the time he takes over the goods and the time of delivery. Therefore, the general Dutch tort law shall apply.