If there is no arbitration agreement it will be necessary to determine which court has jurisdiction either because it has been chosen by the parties or on some other ground such as sufficient connection between the subject matter of the dispute and a particular court.
There is no one convention which operates worldwide as to which court shall have jurisdiction in an international dispute.
Circumstances of Jurisdiction Conflicts in Maritime Cases
Conflict of jurisdiction can arise in maritime operations under some of the following circumstances;
- Maritime Contracts
A maritime contract may give rise to several jurisdictional options to wit: the place where the contract was breached, the place where the contract was made, and the place where the parties to the contract reside.
- Collision at Sea
When two ships collide on the high seas, the flag states of the vessels, the location of the collision, and the nationality of the crew members may all be factors to be taken into consideration when deciding which jurisdiction has authority over the matter.
- Pollution Incidents
The pollution of a ship on in a port or territorial waters makes the port state and the flag state to both have jurisdiction over the incident.
Reasons for Conflict of Jurisdiction in Maritime Cases
- Flag State Jurisdiction
A collision between vessels can lead to a conflict of laws as regards the flag state of both vessels.
- Disputes arising on the high seas
Where problems occur on the high seas, conflict of laws situations will eventually occur especially in cases where both parties decide to engage proceedings in a chosen jurisdiction to their benefit. This will be the case where the parties are from different countries or their vessels have different state flags.
- International Nature of Maritime Activities
Ships travel across international borders, and disputes involving them can involve parties from different countries, this will lead to problems of jurisdiction.
- Nationality of Parties
Where parties to an international maritime dispute are of different nationality, they can both decide to engage actions in their respective countries. This will lead to conflict of jurisdiction.
- Forum Non Conveniens
In some cases, a court may decline to hear a case if another jurisdiction is deemed to be a more appropriate forum, based on factors like convenience and cost.
How Jurisdiction Conflicts are Resolved in Maritime Cases
- International Arbitration
Maritime disputes are often resolved through international arbitration, which can be a neutral forum for resolving jurisdictional conflicts.
- Choice of Law
This is a practice applied by courts to determine which jurisdiction’s law should be applicable to a particular case.
- International Conventions
The United Nations Convention on the Law of the Sea (UNCLOS), provide a framework for resolving jurisdictional disputes and establishing the scope of national jurisdiction in maritime matters. This helps to resolve conflict situations.
Steps to avoid Conflict of Jurisdiction Cases in Maritime Law in Cameroon
- Forum Selection: Most shipping lines will provide in their bill of lading terms for a specific dispute resolution forum to file claims. If the clause provides for a specific court to have exclusive jurisdiction, the court will normally give effect to the clause and stay any proceedings brought in breach of the agreed jurisdiction unless strong cause is shown why stay should not be granted.
- Choice of Law: It is inevitable that the parties in the maritime adventure will as far as possible provide for the application of laws they are most familiar with. where the parties have expressly stipulated that a contract is to be governed by a particular law, that law applies so long as the selection is bona fide and legal and does not contradict public policy.
- The Characterization Question: Whereas matters of substantive law are governed by the lex causae, namely the law applicable under the local rules for the choice of law, all matters of procedure are governed by the lex fori, namely the law of the country in which the action is brought.
- Arbitration Agreement: Where the parties provide for an arbitration agreement in their contract, then this agreement must be respected.
Technical Aspects of Conflict of Jurisdiction in Maritime Matters
- Multiple Proceedings
Several proceedings engaged by the respective parties in different jurisdictions will eventually lead to technical difficulties of applicability of the final decision from different courts. This is a practice that should be avoided as different jurisdiction will eventually have different principles of laws to be used to arrive at their judgment.
- Related Actions
Related actions engaged by parties to an international maritime dispute in different jurisdictions will eventually lead to conflict of jurisdiction. In some cases, the second seized court will stay the proceedings if it realises that another competent court of another jurisdiction has being first seized of the related matter. This issue arose in The Happy Fellow case in which the ships Happy Fellow and Darfur were in collision on the river Seine.
- No Jurisdiction Clause
A maritime contract with a no jurisdiction clause will eventually lead to a conflict of law situation in the event of a dispute.
- Contract Claims
In such situations and proceedings, an action can be brought where the contract was ratified, where the defendant is domiciled and where the contract is breached. Technical issues may occur in circumstances where there are cross claims.
- Tort Claims
In matters relating to tort, delict or quasi- delict the courts for the place where the harmful event occurred shall also have jurisdiction. The technical question is where the main dispute from which a tort occurred is not engaged (proceedings) in the jurisdiction in which the harmful event occurred.
- Agency
This is the case of parent companies, their branch, agency or other establishment. There becomes a technical issue of whether matters against a branch company should be instituted against the parent company directly.
- Remuneration for Salvage of cargo or freight
The claimant may sue for remuneration for salvage of cargo or freight in the court where the cargo or freight has been arrested or could have been arrested and bail or security has been provided.
- Multiple defendants
The availability of multiple defendants in different jurisdiction will eventually lead to a technical difficulty to engage actions against each of these defendants. Hence a conflict of laws situation will eventually arise.
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