International Max Planck Research School
for Maritime Affairs

Hamburg Lectures

The idea

In 2007, the Research School decided together with the International Tribunal for the Law of the Sea (ITLOS) to establish an annual lecture series, the “Hamburg Lectures on Maritime Affairs” – giving distinguished scholars and practitioners the opportunity to present and discuss recent developments in the field of maritime affairs.

The 2007 and 2008 Hamburg Lectures held by Thomas A. Mensah, Krijn Haak, Sergio M. Carbone, Lorenzo Schiano di Pepe, Erik Røsæg, Frank Smeele, Carlos Esplugues Mota and Lucius Caflisch were published in our book series, the Hamburg Studies on Maritime Affairs in 2009.

 The 2009 and 2010 Lectures held by Francesco Munari, Lars Gorton, Beate Czerwenka, Lucius Caflisch, David Joseph Attard, Wolfgang Wurmnest, Kyriaki Noussia and Peter Wetterstein were published in 2012.

The 2011 Lectures

As in previous years, the 2011 lectures were held on the premises of ITLOS and the Institute. Judge Rüdiger Wolfrum, who is also a Director of the Research School, opened the series with his lecture on “Preservation of the Marine Environment” on 28 September 2011 on the premises of ITLOS. In addition, the Research School organised three lectures at the Max Planck Institute for Comparative and International Private Law and a fourth one in cooperation with the Center for Marine and Atmospheric Sciences Centre for Marine and Atmospheric Sciences on the Centre’s premises.

On 13 October 2011, Professor Thomas J. Schoenbaum (The George Washington University Law School, Washington D.C.) gave an evening lecture with the title “An Evaluation of the Rotterdam Rules”. While Schoenbaum emphasised the economic importance of the Rotterdam Rules for relevant stakeholders, he made it perfectly clear that the Rotterdam Rules would only provide marginal improvements compared to the other transport-related conventions, namely the Hague and the Hague-Visby and the Hamburg Rules. Against this background, Schoenbaum described the worst possible outcome to be partial ratification of the Rotterdam Rules, i.e. adding just one more convention to the already existing patchwork. With a view to analysing and evaluating the Rotterdam Rules, Schoenbaum presented five criteria, each of which he introduced, defined and applied to the regime in the course of the lecture. For purposes of illustration, Schoenbaum then applied the Rotterdam Rules to two cases which were decided by the U.S. Supreme Court: the 2004 case of Norfolk Southern Railway Co. v. Kirby and the 2010 case of Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp. Subsequently, he evaluated the provisions of the Rotterdam Rules against the background of the given criteria. Eventually, Schoenbaum came to the conclusion that while the Rotterdam Rules do not represent the perfect solution, they may still provide a second-best and pragmatic attempt to modernise the international multimodal transport regime.

The Rotterdam Rules were also the subject of the third Hamburg Lecture. On 1 November Andres Juan Recalde Castells of the University Jaume I in Castelló de la Plana, Spain presented his analysis of Spain’s ratification of the Rotterdam Rules. Spain, being the only country which ratified the Rotterdam Rules, has a long history in the unification of the contracts of carriage. The lecture aimed at pointing out the basis on which Spain ratified the Rotterdam Rules. Recalde Castells gave a solid overview of the current conventions and Spain’s cooperation in this regard. He also pinpointed the most important features of the Rotterdam Rules and shared voiced criticism on particular rules contained in the Convention and the Convention itself. Recalde Castells did not support Spain’s ratification of the Rotterdam Rules and suggested that a modification of the Hague Visby Rules would be more appropriate. He concluded that the Rotterdam Rules create more disparity which will obstruct the unification and growth of maritime law.

On 28 November 2011 Andrew Dickinson (Professor at the Sydney Law School and UK Solicitor Advocate) enlightened a hall full of engaged listeners in the Max Planck Institute on the topic of territory in the Rome I and II Regulations and shared with them his views on how to approach some disputed matters. Dickinson put forward four key issues, constituting the frame for his lecture: (1) Where do the Rome I and Rome II Regulations apply? (2) Are there territorial or geographical limits to the situations falling within the material scope of the Regulations? (3) What do the Regulations mean when referring to the “law of a country”? (4) What is the nature of connection between particular connecting factors used in the Regulations and the country to which they refer? While there currently seems to be little dispute as to the Regulations’ application, the second through fourth issues are more controversial. Indeed the Regulations have universal application; i.e. the law specified by the Regulations shall be applied whether it is the law of a Member or non-Member State. There are some qualifications however, especially the question of how to deal with territories like the high seas, polar regions and outer space, i.e. territories belonging to no State. These areas are increasingly being exploited for wind farms, submarine cables and pipelines, oil rigs and tourism. The third issue of how to understand the reference to the “law of a country” sparked an intense debate among the audience, in which Dickinson defended his view that one should apply a normative model (the law is accepted if the State is recognised as a sovereign State), which stands against the factual model (recognising the law of the day-to-day affairs of the “people on the ground”). Regarding the fourth and last issue, Dickinson emphasised the problem of distinguishing relevant connecting factor(s) when an event, for example, occurs in an area outside of a sovereign State’s territory. He suggested that in such a situation one should identify the type of situation and seek to best serve the Regulation’s purpose with reference to the recitals.

On 1 December, our former Scholar Tatiana Ilyina, now the leader of a research group at the Max Planck Institute for Meteorology in Hamburg, gave an inspiring interdisciplinary lecture on the marine carbon cycle and ocean acidification. The anthropogenic emissions of the greenhouse gas CO2 (carbon dioxide) have sharply increased since the industrial revolution and are a major factor on climate change. The oceans are a reservoir of carbon. They are expected to have the potential to absorb up to 90% of the emitted CO2. The extent of this input will have strong influences on the marine carbon cycle as well as on the climate change itself. Anthropogenic emitted greenhouse gasses, effects a global warming and thus a warming of the oceans. As a result, sea currents, atmospheric deposition, carbon sinks and sources as well as the feedback of CO2 to atmosphere will be affected. An effect which is termed ocean acidification (decrease in pH) is measureable. The decrease in pH has various and complex effects on the oceanic ecosystems, which are not completely understood. In the first instance the lowering in pH causes an extended dissociation of calciumcarbonate in sea water, which is termed calcification. Hence, marine organisms, the skeletons and cell constructions which consist of calciumcarbonate, e.g. corals, are negatively affected by the decrease in pH. Effects on calcification are expected to be detectable as early as 2020 to 2060. In addition, the ocean acidification affects the absorption of acoustic signals. Frequencies in the range of 100 Hz to 10 kHz, originating from natural as well as anthropogenic sources, are less absorbed by sea water of decreased pH. Geo-engineers are now considering an artificial ocean alkalisation by carbonate rocks or strong bases like lime to stop the acidification. However, this procedure is less feasible because the artificial alkalisation needs to be done for all sea regions and requires billions of shipping containers of lime per year. Moreover, artificial alkalisation may cause further, as yet unknown, effects on marine ecosystems.

The 2010 Lectures

For the fourth time the Research School invited together with the International Tribunal for the Law of the Sea (ITLOS) to the Hamburg Lectures on Maritime Affairs which took place in October and November 2010. As in the preceding year, the series was organized with support of the Nippon Foundation, and, as in previous years, the lectures of 2010 were held on the premises of ITLOS and the Institute.

In addition to the 7 October 2010 lecture by Professor Lucius Caflisch from the Institute of International Studies, Geneva "Maritime Delimitation – What Methods of Settlement?" and the 14 October 2010 lecture by Professor David Attard’s (Director, IMO International Maritime Law Institute, Malta) on "Maritime Jurisdiction in Enclosed and Semi-enclosed Seas: The Mediterranean Experience", both of which were both organized by ITLOS, the Research School invited in 2010 the attendance of practitioners, students and scholars to four further lectures:

The lectures of the Research School started on 12 April 2010 with a very topical talk by Beate Czerwenka (German Federal Ministry of Justice, Berlin) which reported on the planned reform of German maritime law (“The Proposal for a Reform of German Maritime Law”). Czerwenka explained that German maritime law is still mainly based on the provisions of the General Commercial Code from 1861, the Allgemeines Deutsches Handelsgesetzbuch, and dates back to a time before the enactment of the German Civil Code, the Bürgerliches Gesetzbuch. She stressed that German maritime law reflects to a large extent a time when small wooden sailing vessels were used, tramp shipping was the common means of trading and liner shipping with its motorized vessels of a considerable size did not yet exist. As a consequence, the 2004 decision of the German Ministry of Justice to put the reform of German maritime law on the political agenda was long overdue. In August 2009, an expert committee submitted a comprehensive report on maritime law reform. In her talk, Czerwenka addressed the findings of the expert committee and then compared the proposals with the Rotterdam Rules, highlighting the major differences in the process. In the ensuing discussion, which mainly dealt with the impact of the Rotterdam Rules on the reform process, Czerwenka voiced doubts whether an implementation of the Rotterdam Rules – rather than a reform of the existing maritime law – would be a feasible alternative. She expressed the view that such a step should only be considered if the majority of the leading maritime nations adopted the Rotterdam Rules – which is not foreseeable at the moment.

On 18 October 2010 Wolfgang Wurmnest (Professor at the Leibniz Universität Hannover) gave a lecture on “Maritime Employment Contracts in the Conflict of Laws”. Wurmnest ’s lecture focussed on the Rome I Regulation of 2008, which sets out the European Union’s conflict of law rules in relation to contractual obligations. The core principle of Rome I is the principle of party autonomy, allowing the parties to a contract to freely choose the law which will govern their agreement. However, an explicit choice of law does not always take place. This leaves a court, which may later be asked to resolve the parties’ contractual dispute, with the problem of determining which country’s law is to apply. As Wurmnest explained, the provisions contained in Rome I which deal with this latter situation do not clarify all of the issues raised by maritime employment contracts. The rules provided for by Rome I, such as the application of the law of “the country in which or, failing that, from which the employee habitually carries out his work”, cannot be unequivocally interpreted, and even the entirety of provisions leaves open the possibility of employers using registries and jurisdictions with low employment standards in order to force vulnerable seafaring employees into unfavourable contracts. The lecture also raised the problem of a German law provision regarding employment contracts and the German international shipping register, which Wurmnest argued explicitly involved issues of European Union law and whose compatibility with EU law required clarification by the European Court of Justice. The status of this provision (section 21 of the German Flag Act) was hotly debated amongst members of the audience, some of whom had been involved in its drafting in the late 1980s.

The main focus of the lecture (“Environmental Pollution Liability and Insurance Law Ramifications in Light of the "Deepwater Horizon" Oil Spill”) given by Kyriaki Noussia (Rokas & Partners International Law Firm, Athens, Greece) on 27 October 2010 was on transnational environmental accountability and non-national interests regarding the coverage of environmental damage. Noussia started her lecture by critically examining the so-called "polluter pays"-principle as adopted by the current environmental liability rules. In particular, Noussia questioned the sufficiency of current insurance options for current and future demand. The first part of the lecture covered the data concerning the explosion of the oil rig "Deepwater Horizon" on 20 April 2010, which resulted in an oil spill of around 4.1 million barrels in total. Noussia then explained the current international and U.S. regimes regarding environmental protection and liability for environmental damages and their application to the Deepwater Horizon-oil spill, which is already being negotiated in remuneration cases involving the U.S. states of Mississippi, Louisiana and Alabama. Further, she outlined the European Union's regime regarding environmental liability and the EU plan of an integrated approach to include all member states and to cover maritime pollution for all offshore facilities in the area up to 200 miles from the coast (EEZ under UNCLOS). Regarding the current oil spill, Noussia juxtaposed BP’s insurance cover with the actual costs and categories of damages involved in the “Deepwater Horizon” incident, which include natural resources-damage, personal property-damage, removal, loss of earnings, extra expenses concerning the clean-up and Directors & Officers liability. The current insurance regime, by contrast, normally only includes four types of insurance: employers, mitigation, clean-up and offshore energy insurance. Detailing the future U.S. environmental off-shore policy, Noussia pointed out that the main question is whether the insurance industry will provide a higher coverage in instances where the extent of damage is unknown. An additional question concerns the application of mandatory environmental liability coverage since, in practice, it is unlikely that a voluntary coverage scheme will arise. Other questions such as a moratorium for drilling in the Gulf of Mexico, an increase in the general limits of liability, the meaning and practical implementation of preventive measures and a possible introduction of criminal sanctions were briefly touched upon. In conclusion, Noussia pointed out that, no matter what the outcome of legislative talks, any new measure should take into account that the world-wide community could not bear any interruptions in the energy market.

As a starting point of his lecture (“Remedying of Environmental Damage Caused by Shipping”) on 10 November 2010, Peter Wetterstein (Professor at the Åbo Akademi University, Turku, Finland) explained the concept of remediation as going beyond a mere removal of oil and other pollutants. Remediation in his view includes an effort to repair or replenish the environment to its previous state. Wetterstein pointed out that none of the public international treaties that contain provisions on the prevention, reduction and control of marine pollution provide for remedying responsibilities or the allocation of liability regarding environmental damage caused by ships. In contrast, such provisions are to be found in civil law conventions like the 1992 Civil Liability Convention (CLC) and the 2001 Bunker Convention. For substances other than those covered by the CLC and the Bunker Convention, the 1996 HNS Convention, which is not yet in force, contains a similar liability concept regarding environmental damage. After a short excursus on Nordic Laws as concerns the remediation of environmental damage, Wetterstein turned to EU Directive 2004/35 on environmental liability with regard to the prevention and remedying of environmental damage. According to Wetterstein, the Directive has accepted the principle of liability for damage to the environment per se. The environmental liability is exclusively a liability vis-à-vis the public. Wetterstein outlined the notion of environmental damage and the concepts of remediation. Environmental damage covers damage to protected species and natural habitats as well as water damage and land damage. The concept of remediation is three-fold and includes primary remediation, complementary remediation and compensatory remediation. He highlighted the concept of compensatory remediation, which is new in European legislation and includes action taken to compensate for interim losses of natural resources and/or services that occur from the date damage was incurred until primary remediation has achieved its full effect. Neither the CLC, nor the Bunker and HNS Convention provide for compensation with regard to interim losses. Therefore, in his conclusion Wetterstein stressed the importance of conflict of law rules and the need to harmonize the substantial rules on remediation of environmental damage. He closed his comprehensive lecture by advocating the re-examination, inter alia, of the exceptions from the Directive’s scope of application which has been granted to the civil liability conventions and of the thresholds established in the notion of environmental damage by the reference to damage with significant adverse effects.

The 2009 Lectures

The first Hamburg Lecture on Maritime Affairs in 2009 was held on 8 September 2009 by Francesco Munari from the Dipartimento di Ricerche Europee of the University of Genova. After being welcomed by the Registrar of the International Tribunal for the Law of the Sea, Philippe Gautier, as well as Jürgen Basedow, Munari offered a fascinating insight into “Competition in Liner Shipping.” After tracing the history of legislation in collusion and antitrust, Munari explained changes in the perception of competition in liner shipping and concluded his lecture with an outlook on the probable future development of antitrust regulations in Europe.

On 18 September 2009 ITLOS hosted a roundtable discussion on “Advisory proceedings before the International Tribunal for the Law of the Sea.” Judge Jose Luis Jesus (President, ITLOS), Judge T. M. Ndiaye (ITLOS), Judge Z. Gao (ITLOS), Judge J. L. Kateka (ITLOS), Judge S. Yanai (ITLOS) and Professor Doris König (Bucerius Law School/IMPRS) offered a lively exchange on the subject.

The second Hamburg Lecture on Maritime Affairs on 28 September 2009 was held by Professor Lars Gorton from the University of Lund and Copenhagen Business School on “Regional Harmonization of Maritime Law in Scandinavia.” Gorton provided interesting insights into the history and the development of the Nordic maritime codes. He explained that the harmonization of maritime law in Scandinavia is embedded into the generally prevailing concept of legal harmonization in the region. Gorton’s portrayal of the perception of the Rotterdam Rules in the Nordic countries sparked a lively discussion.

ITLOS organized another roundtable discussion on 5 October 2009. Judge Jose Luis Jesus (President, ITLOS), Judge J. Akl (ITLOS), Judge D. Nelson (ITLOS), Judge V. Golitsyn (ITLOS), Mr Philippe Gautier (Registrar, ITLOS) and Mr. Lance Fleischer (LKF Conseil) debated on the topic “The International Tribunal for the Law of the Sea and the Prompt Release of Vessels and Crew.”

On 23 October 2009, the final session of the 2009 Hamburg Lectures on Maritime Affairs took place. The speaker, Charles Debattista, professor and practitioner in shipping law, gave a speech on the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, better known as the Rotterdam Rules. The focus of the lecture was placed on the impact that the Rotterdam Rules will create for sellers, buyers and banks. Debattista examined the alternatives to the Rotterdam regime., comparing it to the possibility of the parallel existence of separate multiple regimes with different rules, and concluded with an assessment of the Rotterdam regime as preferable to the alternatives named since, in his words, “the prize of uniformity is too large to resist.”

The 2008 Lectures

The 2007 Lectures

The 2007 series was opened on 22 October 2007 by an evening lecture of the former president of ITLOS, Thomas Mensah, who gave an overview on “Civil Liability and Compensation for Environmental Damage in the 1982 Convention on the Law of the Sea”.

On 2 November 2007 an afternoon panel discussion on “Climate Change” followed where Hartmut Grassl (Director of the Research School and former Director of the Max Planck Institute for Meteorology, Hamburg) and Maria Socorro Manguiat (Programme Officer, United Nations Framework Convention on Climate Change, Bonn) discussed the scientific and legal aspects of climate change. The panel was chaired by Thomas Pohlmann (Director of the Research School and Senior Scientist at the Centre for Marine and Climate Research and Member of the Institute of Oceanography at the University of Hamburg).

During the next evening lecture on 6 November 2007 Elie Jarmache (Chargé de mission, Secrétariat Général de la Mer, Paris) addressed “Les évolutions du statut de la recherche scientifique marine et les effets sur le régime de la Convention de Montego Bay“ analysing the legal aspects of maritime research under the international law of the sea.

On 15 November 2007 Krijn Haak (Erasmus University Rotterdam) talked in his evening lecture on the “Presence and Future of the CRTD Convention”, a convention which deals with the liability arising from dangerous goods within inland navigation transport but was extended by the Netherlands unilaterally to maritime transport.

The 2007 series was completed by an evening lecture given by Sergio Carbone (University of Genoa) on “Liability from marine pollution between uniform law and choice of law and jurisdiction”; Sergio Carbone gave an overview of the interplay between uniform substantive law and conflict of laws.

The public lectures were accompanied by two seminars held by Directors of the Research School, Peter Ehlers (President of the Federal Maritime and Hydrographic Agency) on “Maritime Policy” and Peter Mankowski (University of Hamburg) on “Maritime Matters in Private International Law”. Both seminars were open only to Scholars and Associates as well as the staff members of ITLOS.

See the programme.