Poredbeno Pomorsko Pravo (Aug 2009)
Stoppage in transit and right of control : 'Conflict of rules' ?
Abstract
Stoppage in transit is a common law mechanism of protection of unpaid seller aimed at protecting the seller against the risk of non payment of the price. This seller’s right has been adopted in a modified form by the UN Convention on the International Sale of Goods (CISG). On the other hand, under the rules of maritime law, there is the right of control over the goods performed by the holder of all originals of the negotiable transport document. The stoppage in transit, as defined by the CISG contravenes the right of control under the maritime law rules, particularly in civil law jurisdictions, where the seller does not have the right to stop the goods in transit, unless he is in possession of all originals of a transport document. This ‘conflict of rules’ became apparent after the UNCITRAL draft of the Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea was adopted in July 2008. Differently from all previous conventions regulating carriage of goods by sea, this UNCITRAL Draft expressly regulates the issue of right of control during the carriage. Under those provisions, the right of control is in the hands of the holder of all originals of a transport document. Hence, under the UNCITRAL Draft the seller does not have the right to stop the goods in transit, unless he is the holder of all originals of a transport document, which is in conflict with the CISG provision on the stoppage in transit. This paper analyzes this ‘conflict of rules’ of these two conventions which were, interestingly, adopted by the same international organization.
