Merchant Shipping(Liner Conferences) Act 1982

• Citation: 1982 c. 37
• Sections: 192

Section 1 Introductory provisions: the Code and the Contracting Parties to it.

(1) In this Act “ the Code ” means the Convention on a Code of Conduct for Liner Conferences signed at Geneva on 6th April 1974.

(2) The text of the Code is set out in the Schedule to this Act.

(3) Her Majesty may by Order in Council certify which states are Contracting Parties to the Code, and in respect of what countries they are parties, and an Order in Council under this subsection shall be conclusive evidence of the matters certified by it.

Section 2 Implementing regulations: the general scheme.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 3 Matters which may be provided for by regulations.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 4 Power to exclude or restrict operation of the Code for lack of reciprocity.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 5 Liability of members of conference to be in proportion to their responsibility.

(1) Where proceedings arising out of the Code are brought against a member of a conference in respect of damage or loss suffered by any person and other members of the conference are also liable (whether jointly or otherwise) in respect of the same damage or loss, the liability of that member to make good that damage or loss shall be in proportion to his responsibility.

The reference above to the liability of other members of the conference is to any such liability which has been or could be established in proceedings brought before the same court or other tribunal by or on behalf of the person suffering the damage or loss; and for the purposes of this subsection it is immaterial by reference to what law the issue of liability was or would be determined.

(2) In ascertaining the responsibility of a member of a conference for the purposes of subsection (1), regard shall be had not only to the member’s part (if any) in the particular matters giving rise to the proceedings but also to his general involvement in the affairs of the conference as shown, for example, by his share of the conference trade, the nature of pooling arrangements to which he is a party and the extent to which he contributes to the administrative expenses of the conference.

(3) Subsections (1) and (2) apply to any proceedings in the United Kingdom and to proceedings elsewhere in which the extent of the liability of a member of a conference falls to be determined by reference to the law of a part of the United Kingdom.

(4) Where in proceedings arising out of the Code—

(a) judgment is given against a member of a conference in respect of damage or loss ccaused to any person, and

(b) the extent of the member’s liability is not determined by reference to subsections (1) and (2),

the member shall not, if it is sought to enforce the judgment in the United Kingdom, be liable to make good any greater proportion of that damage or loss than if the extent of his liability had been determined by reference to those subsections.

(5) A member of an unincorporated conference against which judgment is given, whether in the United Kingdom or elsewhere, in proceedings arising out of the Code in respect of damage or loss caused by any person by a breach of duty by the conference, shall not, by virtue of section 6(3), be liable to make good any greater proportion of that damage or loss than he would have been if the proceedings had been brought against him and the other members of the conference in respect of a duty owed by all the members of the conference and the extent of his liability had been determined by reference to subsections (1) and (2).

(6) Subsections (4) and (5) shall not affect the enforcement in the United Kingdom of a judgment required to be enforced there by virtue of Part I of the Foreign Judgments (Reciprocal Enforcement) Act 1933 (judgments given in countries with whom reciprocal arrangements exist) or Part I of the Civil Jurisdiction and Judgments Act 1982 or Regulation ( EU ) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), as amended from time to time and as applied by virtue of the Agreement made on 19 October 2005 between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ( OJ No L 299, 16.11.2005, p62; OJ No L79, 21.3.2013, p4) .

Section 6 Proceedings by or against unincorporated conferences.

(1) A conference which is not a body corporate may nevertheless sue and be sued in its own name in proceedings arising out of the Code.

(2) Subsection (1) applies to any proceedings in the United Kingdom and to proceedings elsewhere in which the capacity of a conference to sue and be sued in its own name falls to be determined by reference to the law of a part of the United Kingdom.

(3) A judgment given for or against an unincorporated conference in proceedings brought against the conference in its own name, whether in the United Kingdom or elsewhere, shall be binding on the members of the conference, and such a judgment given against a conference shall be enforceable—

(a) against any property held in trust for the purposes of the conference, to the like extent and in the like manner as if the conference were a body corporate; and

(b) against any member of the conference, subject to section 5(5).

(4) Subsection (3) applies in each part of the United Kingdom to judgments given by a court of that part or which are enforceable or entitled to recognition in that part.

Section 7 Restrictions on legal proceedings.

(1) Legal proceedings arising out of a dispute relating to the application or operation of the Code may be brought in the United Kingdom only in the High Court or the Court of Session; and in this section “ the court ” means either of those courts.

(2) Proceedings arising out of a dispute to which Article 23, paragraph 2 applies (disputes to be resolved within the framework of the national jurisdiction concerned) shall not be entertained by the court except as permitted by that paragraph.

(3) The court shall stay proceedings before it if on the application of a party to the proceedings, made after appearance but before delivering any pleadings or taking any other steps in the proceedings, it is shown that the proceedings arise out of a dispute to which Article 23, paragraph 4 applies and that—

(a) the dispute has not been referred to conciliation in accordance with that paragraph or has been so referred and cnciliation proceedings are still in progress; or

(b) the parties to the dispute have made an agreement to which Article 25, paragraph 1 applies (agreed procedures in lieu of conciliation) which is capable of being, or has been, performed.

(4) The court may attach to a stay granted under subsection (3) such conditions as appear to it appropriate, in particular conditions with respect to the institution or prosecution of conciliation or other proceedings; and the court may remove a stay granted under that subsection if any such condition is not complied with or if at any time it appears to the court that the circumstances are such that a new application for the stay would not be granted.

(5) In relation to an arbitration agreement to which Article 25, paragraph 1 applies, subsections (3) and (4) apply in place of section 9 of the Arbitration Act 1996 (which also provides for the staying of legal proceedings).

(6) In the application of this section to Scotland, for the references to staying proceedings substitute references to sisting proceedings.

Section 8 Time for bringing legal proceedings.

(1) No legal proceedings arising out of a dispute relating to the application or operation of the Code shall be brought in the United Kingdom after the end of the period of two years from the date on which the cause of action accrued or, if later, the end of the period of six months from the date on which conciliation proceedings relating to the dispute were completed or abandoned.

(2) In England and Wales the following provisions of the Limitation Act 1980 apply to the limitation period prescribed by subsection (1) as they apply to the limitation periods prescribed by that Act—

(a) section 28(1) (extension of period in case of legal disability), but with the substitution of “two years” for “six years”;

(b) section 32(1) (postponement of period in case of fraud, concealment or mistake);

(c) section 35 (application to new claims in pending actions).

(3) In Scotland section 6(4) of the Prescription and Limitation (Scotland) Act 1973 (extension of prescriptive period in case of fraud, error or legal disability) applies to the limitation period prescribed by subsection (1) as it applies to the prescriptive period mentioned in section 6(1) of that Act.

(4) In Northern Ireland the following provisions of the Limitation (Northern Ireland) Order 1989 apply to the limitation period prescribed by subsection (1) as they apply to the limitation periods prescribed by that Act—

(a) Article 73 (application to new claims in pending actions);

(b) Article 48(1) (extension of period in case of legal disability), but with the substitution of “two years” for “six years”;

(c) section 70(1) (postponement of period in case of fraud, concealment or mistake).

Section 9 Recognition and enforcement of recommendations, etc. of conciliators.

(1) Where a recommendation of conciliators has become binding as between two or more parties in accordance with Article 37, then, subject to subsection (2)—

(a) it shall be recognised in the United Kingdom as conclusive as between those parties of the dispute to which it relates; and

(b) any of those parties may apply to have the recommendation registered for enforcement in the High Court or the Court of Session.

(2) A recommendation shall not be so recognised or enforced if it is affected by any of the matters mentioned in sub-paragraphs (a) to (d) of Article 39, paragraph 2 (disability, fraud, coercion, public policy or irregularity of composition or procedure of the conciliators), unless the affected part can be severed as mentioned in Article 39, paragraph 3 and the remainder of the recommendation recognised and enforced.

(3) Where the costs to be borne by a party to conciliation proceedings in accordance with Article 43, paragraph 1 (costs of the conciliation and its administration) have been determined, the person to whom those costs are to be paid may apply to have the determination registered for enforcement in the High Court or the Court of Session.

(4) A party in whose favour an award of costs has been made by conciliators under Article 43, paragraph 3 (vexatious or frivolous proceedings) may apply to have the award registered for enforcement in the High Court or the Court of Session.

(5) Provision may be made by rules of court as to—

(a) the manner in which application is to be made for registration of a recommendation, determination or award under this section;

(b) the documents to be produced and the matters to be proved by a person seeking recognition of a recommendation or enforcement of a recommendation, determination or award;

(c) the manner in which a recommendation, determination or award is to be registered under this section;

(d) the manner in which and the conditions subject to which a recommendation , determination or award so registered may be enforced.

(6) Subject to any provision made under subsection (5)(d), a recommendation, determination or award registered under this section shall, for the purposes of its enforcement, be of the same force and effect, the registering court shall have the same powers in relation to its enforcement, and proceedings for or with respect to its enforcement may be taken, as if the recommendation, determination or award had been a judgment or decree originally given in the registering court and had (where relevant) been entered.

(7) Where a recommendation, determination or award is registered under this section, the reasonable costs or expenses of, and incidental to, its registration are recoverable as if they were sums recoverable under it, except that they carry interest as if they were the subject of an order for the payment of costs or expenses made by the registering court on the date of registration.

Section 10 Secretary of State to be appropriate authority in the U.K.

(1) The appropriate authority in the United Kingdom for the purposes of the Code is the Secretary of State.

(2) Information obtained by the Secretary of State as appropriate authority for the purposes of the Code shall not, without the consent of the person from whom it was obtained, be disclosed except—

(a) for the purpose of the discharge by the Secretary of State of his functions in connection with the Code; or

(b) for the purpose of any proceedings arising out of the Code; or

(c) with a view to the institution of, or otherwise for the purposes of, any criminal proceedings, whether under this Act or otherwise; or

(d) to an EU institution in pursuance of an EU obligation;

and a person who discloses any information in contravention of this subsection shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale .

(3) Proceedings in England and Wales for an offence under subsection (2) shall not be brought except by or with the consent of the Director of Public Prosecutions; and proceedings in Northern Ireland for such and offence shall not be brought except by or with the consent of the Director of Public Prosecutions for Northern Ireland.

Section 11 Exclusion of restrictive practices law.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 12 Modifications consequent on revision of Code, etc.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 13 Regulations and orders: consultation and Parliamentary control.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 14 Interpretation.

(1) In this Act—

“ Article ” means Article of the Code;

“ the Code ” has the meaning given by section 1(1);

“ conciliation ” means international mandatory conciliation under Chapter VI of the Code, and references to the institution or completion of conciliation proceedings shall be construed in accordance with subsection (2);

“ conference ” has the meaning given by Chapter I of the Code;

“ judgment ”, in relation to proceedings arising out of the Code, means any judgment, decree, order, award, recommendation or determination of any description given or made in such proceedings, and references to the giving of a judgment shall be construed accordingly;

“ mandatory provision ”, in relation to the Code, means a provision identified as such by regulations as mentioned in section 2(2)(b);

“ modifications ” includes additions, omissions and alterations;

“ proceedings arising out of the Code ” means legal proceedings, conciliation proceedings, arbitration proceedings or any other proceedings for the determination or resolution of a dispute arising out of the Code;

“ statutory provision ” means any provision contained in an Act, in Northern Ireland legislation, in subordinate legislation (as defined in section 21(1) of the Interpretation Act 1978) or in any instrument of a legislative character made under Northern Ireland legislation;

“ trade ” has the same meaning as in the Code.

(2) For the purposes of this Act conciliation proceedings relating to a dispute are instituted when a party to the dispute requests that it be referred to conciliation and are completed when the conciliators notify the parties of their recommendations.

Section 15 Short title, commencement and extent.

(1) This Act may be cited as the Merchant Shipping (Liner Conferences) Act 1982.

(2) This Act comes into force on such day as the Secretary of State may appoint by order made by statutory instrument.

(3) This Act extends to Northern Ireland.

(4) Her Majesty may by Order in Council provide that any provisions of this Act, or of any instrument made under this Act, shall extend, with such modifications as are specified in the Order, to any of the following countries, namely the Isle of Man, any of the Channel Islands and any colony.

(5) An Order in Council under subsection (4) relating to any of the countries mentioned in that subsection may direct that any provision of this Act, or of any instrument made under this Act, shall have effect, with such modifications as may be specified in the Order, as if references to the United Kingdom included references to that country.

Section 1

Any national shipping line shall have the right to be a full member of a conference which serves the foreign trade of its country, subject to the criteria set out in article 1, paragraph 2. Shipping lines which are not national lines in any trade of a conference shall have the right to become full members of that conference, subject to the criteria set out in article 1, paragraphs 2 and 3, and to the provisions regarding the share of trade as set out in article 2 as regards third-country shipping lines.

Section 1

Any shipping line admitted to membership of a conference shall have sailing and loading rights in the trades covered by that conference.

Section 1

A shipping line member of a conference shall be entitled, subject to the provisions regarding withdrawal which are embodied in pool schemes and/or cargo-sharing arrangements, to secure its release, without penalty, from the terms of the conference agreement after giving three months’ notice, unless the conference agreement provides for a different time period, although it shall be required to fulfil its obligations as a member of the conference up to the date of its release.

Section 1

A conference shall adopt and keep up to date an illustrative list, which shall be as comprehensive as possible, of practices which are regarded as malpractices and/or breaches of the conference agreement and shall provide effective self-policing machinery to deal with them, with specific provisions requiring:

(a) The fixing of penalties or a range of penalties for malpractices or breaches, to be commensurate with their seriousness;

(b) The examination and impartial review of an adjudication of complaints, and/or decisions taken on complaints, against malpractices or breaches, by a person or body unconnected with any of the shipping lines members of the conference or their affiliates, on request by the conference or any other party concerned;

(c) The reporting, on request, on the action taken in connection with complaints against malpractices and/or breaches, and on a basis of anonymity for the parties concerned, to the appropriate authorities of the countries whose trade is served by the conference and of the countries whose shipping lines are members of the conference.

(2) Shipping lines and conferences are entitled to the full co-operation of shippers and shippers’ organizations in the endeavour to combat malpractices and breaches.

Section 1

The shipping lines members of a conference are entitled to institute and maintain loyalty arrangements with shippers, the form and terms of which are matters for consultation between the conference and shippers’ organizations or representatives of shippers. These loyalty arrangements shall provide safeguards making explicit the rights of shippers and conference members. These arrangements shall be based on the contract system or any other system which is also lawful.

Section 1

Conferences shall provide, within the terms of the loyalty arrangements, that requests by shippers for dispensation shall be examined and a decision given quickly and, if requested, the reasons given in writing where dispensation is withheld. Should a conference fail to confirm, within a period specified in the loyalty arrangement, sufficient space to accommodate a shipper’s cargo within a period also specified in the loyalty arrangement, the shipper shall have the right, without being penalized, to utilize any vessel for the cargo in question.

(2) In ports where conference services are arranged subject to the availability of a specified minimum of cargo (i.e. on inducement), but either the shipping line does not call, despite due notice by shippers, or the shipping line does not reply within an agreed time to the notice given by shippers, shippers shall automatically have the right, without prejudicing their loyalty status, to use any available vessel for the carriage of their cargo.

Section 1

There shall be consultations on matters of common interest between a conference, shippers’ organizations, representatives of shippers and, where practicable, shippers, which may be designated for that purpose by the appropriate authority if it so desires. These consultations shall take place whenever requested by any of the above-mentioned parties. Appropriate authorities shall have the right, upon request, to participate fully in the consultations, but this does not mean that they play a decision-making role.

Section 1

Conference tariffs shall not unfairly differentiate between shippers similarly situated. Shipping lines members of a conference shall adhere strictly to the rates, rules and terms shown in the tariffs and other currently valid published documents of the conference and to any special arrangements permitted under this Code.

Section 1

A conference shall give notice of not less than 150 days, or according to regional practice and/or agreement, to shippers’ organizations or representatives of shippers and/or shippers and, where so required, to appropriate authorities of the countries whose trade is served by the conference, of its intention to effect a general increase in freight rates, an indication of its extent, the date of effect and the reasons supporting the proposed increase.

Section 1

Promotional freight rates for non-traditional exports should be instituted by conferences.

Section 1

Surcharges imposed by a conference to cover sudden or extraordinary increases in costs or losses of revenue shall be regarded as temporary. They shall be reduced in accordance with improvements in the situation or circumstances which they were imposed to meet and shall be cancelled, subject to article 16, paragraph 6, as soon as the situation or circumstances which prompted their imposition cease to prevail. This shall be indicated at the moment of their imposition, together, as far as possible, with a description of the change in the situation of circumstances which will bring about their increase, reduction or cancellation.

Section 1

Exchange rate changes, including formal devaluation or revaluation, which lead to changes in the aggregate operational costs and/or revenues of the shipping lines members of a conference relating to their operations within the conference provide a valid reason for the introduction of a currency adjustment factor or for a change in the freight rates. The adjustment or change shall be such that in the aggregate the member lines concerned neither gain nor lose, as far as possible, as a result of the adjustment or change. The adjustment or change may take the form of currency surcharges or discounts or of increases or decreases in the freight rates.

Section 1

Conferences should take necessary and appropriate measures to ensure that their member lines provide regular, adequate and efficient service of the required frequency on the routes they serve and shall arrange such services so as to avoid as far as possible bunching and gapping of sailings. Conferences should also take into consideration any special measures necessary in arranging services to handle seasonal variations on cargo volumes.

Section 1

The provisions of this chapter shall apply whenever there is a dispute relating to the application or operation of the provisions of this Code between the following parties:

(a) A conference and a shipping line;

(b) The shipping lines members of a conference;

(c) A conference or a shipping line member thereof and a shipper’s organization or representatives of shippers or shippers; and

(d) Two or more conferences.

For the purposes of this chapter the term “ party ” means the original parties to the dispute as well as third parties which have joined the proceedings in accordance with (a) of article 34.

Section 1

The conciliation procedure is initiated at the request of one of the parties to the dispute.

Section 1

Where the parties have agreed that disputes referred to in article 23, paragraph 4(a), (b), (c), (d), (h) and (i) shall be resolved through procedures other than those established in that article, or agree on procedures to resolve a particular dispute that has arisen between them, such disputes shall, at the request of any of the parties to the dispute, be resolved as provided for in their agreement.

Section 1

The Contracting Parties shall confer upon conferences and shippers’ organizations such capacity as is necessary for the application of the provisions of this chapter. In particular:

(a) A conference or a shippers’ organization may institute proceedings as a party or be named as a party to proceedings in its collective capacity;

(b) Any notification to a conference or shippers’ organization in its collective capacity shall also constitute a notification to each member of such conference or shippers’ organization;

(c) A notification to a conference or shippers’ organization shall be transmitted to the address of the head office of the conference or shippers’ organization. Each conference or shippers’ organization shall register the address of its head office with the Registrar appointed in accordance with article 46, paragraph 1. In the event that a conference or a shippers’ organization fails to register or has no head office, a notification to any member in the name of the conference or shippers’ organization shall be deemed to be a notification to such conference or organization.

Section 1

In international mandatory conciliation the proceedings shall be held in the place unanimously agreed to by the parties or, failing such agreement, in the place decided upon by the conciliators.

Section 1

For the purposes of this chapter an international panel of conciliators shall be established, consisting of experts of high repute or experience in the fields of law, economics of sea transport, or foreign trade and finance, as determined by the Contracting Parties selecting them, who shall serve in an independent capacity.

Section 1

The purpose of conciliation is to reach an amicable settlement of the dispute through recommendations formulated by independent conciliators.

Section 1

The conciliation proceedings shall be conducted either by one conciliator or by an uneven number of conciliators agreed upon or designated by the parties.

Section 1

Where several parties request conciliation with the same respondent in respect of the same issue, or of issues which are closely connected, that respondent may request the consolidation of those cases.

Section 1

The recommendations of the conciliators shall be made in accordance with the provisions of this Code.

Section 1

Unless the parties have agreed before, during or after the conciliation procedure that the recommendation of the conciliators shall be binding, the recommendation shall become binding by acceptance by the parties. A recommendation which has been accepted by some parties to a dispute shall be binding as between those parties only.

Section 1

A recommendation shall constitute a final determination of a dispute as between the parties which accept it, except to the extent that the recommendation is not recognized and enforced in accordance with the provisions of article 39.

Section 1

Each Contracting Party shall recognize a recommendation as binding between the parties which have accepted it and shall, subject to the provisions of article 39, paragraphs 2 and 3, enforce, at the request of any such party, all obligations imposed by the recommendation as if it were a final judgment of a court of that Contracting Party.

Section 1

Where the recommendation has been accepted by all the parties, the recommendation and the reasons therefor may be published with the consent of all the parties.

Section 1

Documents and statements containing factual information supplied by any party to the conciliators shall be made public unless that party or a majority of the conciliators agrees otherwise.

Section 1

(a) The costs of the conciliators and all costs of the administration of the conciliation proceedings shall be borne equally by the parties to the proceedings, unless they agree otherwise.

(b) When the conciliation proceedings have been initiated, the conciliators shall be entitled to require an advance or security for the costs referred to in article 43, paragraph 1(a).

Section 1

Failure of a party to appear or to present its case at any stage of the proceedings shall not be deemed an admission of the other party’s assertions. In that event, the other party may, at its choice, request the conciliators to close the proceedings or to deal with the questions presented to them and submit a recommendation in accordance with the provisions for making recommendations set out in this Code.

Section 1

The conciliators shall follow the procedures stipulated in this Code.

Section 1

Six months before the entry into force of the present Convention, the Secretary-General of the United Nations shall, subject to the approval of the General Assembly of the United Nations, and taking into account the views expressed by the Contracting Parties, appoint a Registrar, who may be assisted by such additional staff as may be necessary for the performance of the functions listed in article 46, paragraph 2. Administrative services for the Registrar and his assistants shall be provided by the United Nations Office at Geneva.

Section 1

Each Contracting Party shall take such legislative or other measures as may be necessary to implement the present Convention.

Section 1

The present Convention shall remain open for signature as from 1 July 1974 until and including 30 June 1975 at United Nations Headquarters and shall thereafter remain open for accession.

Section 1

The present Convention shall enter into force six months after the date on which not less than 24 States, the combined tonnage of which amounts to at least 25 per cent of world tonnage, have become Contracting Parties to it in accordance with article 48. For the purpose of the present article the tonnage shall be deemed to be that contained in Lloyd’s Register of Shipping—Statistical Tables 1973, table 2 “World Fleets—Analysis by Principal Types”, in respect to general cargo (including passenger/cargo) ships and container (fully cellular) ships, exclusive of the United States reserve fleet and the American and Canadian Great Lakes fleets.