Forum selection clauses under the Hague (Visby) Rules

Contracts for the carriage of goods by sea are, by and large, shaped by an imbalance in the power of the parties. In order to avoid the most negative consequences of these disparities, the international regulatory framework establishes certain limitations on the parties’ freedom of contract. The Hague (Visby) Rules, the most commonly applied set of norms for the carriage of goods by sea, ensure this protection of the weaker party by preventing the carrier from contracting out of its obligations and escaping liability. This is the purpose of Article 3(8) of the Rules, which makes any such agreement void and of no effect. Although the Hague (Visby) Rules do not regulate jurisdictional issues, some have suggested that Article 3(8) should also be used to determine whether a given forum selection clause should be upheld. Due to the effect that these clauses can have on the ability of the claimant to recover its losses (whether due to inconvenience, costs, or different applications of the norms), it has been suggested that some forum selection clauses actually lower the liability of the carrier beyond the limits that are allowed. A review of the way in which these clauses have been dealt with in the US and the UK (taking into consideration the European Brussels regime) shows that, in their treatment of forum selection clauses, courts have adopted a carrier-friendly approach, enforcing clauses that, in effect, might lower the protection established in favour of the claimants