Unexpected Circumstances in Shipping Contracts

Change of conditions in shipping contracts, in particular affreightments, is not uniformly ruled, depending on the law governing the specific contract. Civil law and common law provide for very considerably different regulation of the effects on the contract’s performance of supervening events after its conclusion. Moreover, both among civil law Countries, from the one hand, and among common law ones, from the other, the differences in regulating this issue are still remarkable. The emerging EU Private and Contract Law deals also with the change of circumstances after the conclusion of a contract. PECL and DCFR, for example, provide for change of circumstances respectively in articles 6:111 and III-3:101 and III-3:104. The article's aim is to determine if and to what extent each above-mentioned set of rules, according to their nature, could govern Maritime Law issues, considering its speciality and autonomy, and their possible effects on international and national law and case-law. Therefore the article analyses the regulation of imbalance deriving from changing of circumstances after the conclusion of a contract both in civil law and common law Countries, especially with regard to UK law, which is often the law chosen by the parties for governing their shipping contract. The article examines also the most common contract forms and the clauses referred to the change of circumstances and frustration, such as hardship clauses. PECL and DCFR’s rules are therefore interpreted and compared between them and with national rules in order to outline their possible effects, depending also on the actual and possible future nature of those instruments. PECL and DCFR’s provisions arise also the question of the interpretation of “good faith” and “fair dealing”, since in English law no general duty of good faith exists and that these two principles have different meanings and consequences within the law systems that provide for them. Another issue is the Court’s role and powers when the parties could not reach an agreement, because PECL and DCFR recognize to judges the power, unknown to some Countries, to determine the contract’s content. The research method includes therefore a comparative analysis of many EU legal systems, in order to assess the feasibility of a future extension of PECL and DCFR to shipping contracts.

Change of conditions in shipping contracts is not uniformly ruled, depending on the law governing the specific contract. Civil law and Common law provide for very considerably different regulation of the effects on the contract’s performance of supervening events after its conclusion. Moreover, both among Civil law Countries, from the one hand, and among Common law ones, from the other, the differences in regulating this issue are still remarkable. The emerging EU Private and Contract Law deals also with the change of circumstances after the conclusion of a contract. PECL and DCFR, for example, provide for change of circumstances respectively in articles 6:111 and III-3:101 and III-3:104. The article's aim is to determine if and to what extent each above-mentioned set of rules, according to their nature, could govern Maritime Law issues, considering its speciality and autonomy, and their possible effects on international and national law and case-law. Therefore the article analyses the regulation of imbalance deriving from changing of circumstances after the conclusion of a contract both in Civil law and Common law Countries, especially with regard to UK law, which is often the law chosen by the parties for governing their shipping contract. The article examines also the most common contract forms and the clauses referred to the change of circumstances and frustration, such as hardship clauses. PECL and DCFR’s rules are therefore interpreted and compared between them and with UPICC and national rules in order to outline their possible effects, depending also on the actual and possible future nature of those instruments. PECL and DCFR’s provisions arise also the question of the interpretation of “good faith” and “fair dealing”, since in English law no general duty of good faith exists and that these two principles have different meanings and consequences within the law systems that provide for them. Another issue is the Court’s role and powers when the parties could not reach an agreement, because PECL and DCFR recognize to judges the power, unknown to some Countries, to determine the contract’s content. The research method includes therefore a comparative analysis of many EU legal systems, in order to assess the feasibility of a future extension of PECL and DCFR to shipping contracts. The book consists of articles of renowned international scholars and belongs to the book series Ius Commune Europaeum (vol. 136) "devoted to the common foundations of the European legal systems", under the auspices of METRO, the Institute for Transnational Legal Research at Maastricht University. The article was subject to a double blind peer review process.