BAHAMAS Law and Practice Contributed by: Richard Horton and Emma Van Wynen, Alexiou, Knowles & Co.
7. Enforcement of Law and Jurisdiction and Arbitration Clauses 7.1 Enforcement of Law and Jurisdiction Clauses Stated in Bills of Lading Bahamian courts generally recognise and enforce law and jurisdiction clauses stated in bills of lading and treat them as binding contractual agreements under the common law principle of freedom of contract. Instances where the court may not uphold a law and jurisdiction clause stated in a bill of lading include where: • the clause is ambiguous or invalid; • enforcement would contravene Bahamian public policy; or • it conflicts with statutory protections under the Carriage of Goods by Sea Act or other applicable laws affecting cargo owners or third parties. However, in the absence of the foregoing concerns, the Supreme Court will usually give effect to the par - ties’ choice of governing law and forum. 7.2 Enforcement of Law and Arbitration Clauses Incorporated Into a Bill of Lading The Bahamian Supreme Court will enforce law and arbitration clauses of a charterparty only if they are clearly and expressly incorporated into the relevant bill of lading. If incorporation is unclear or ambiguous, the clause will not bind the bill of lading holder. Once properly incorporated, the Court will generally treat such clauses like any other contractual term, enforc - ing law and arbitration provisions in accordance with English common law principles subject to public pol - icy and any statutory protections. 7.3 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards The 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards is appli - cable in The Bahamas, having been incorporated into domestic law through the Arbitration (Foreign Arbitral Awards) Act, which came into effect in 2010.
which applies to the resolution of maritime passenger claims. As mentioned, the Bahamas is also a signa - tory to the 1976 Convention on Limitation of Liability for Maritime Claims, which also applies to claims for damage to property, including passenger luggage, in connection with a voyage. Both conventions were incorporated into Bahamian law by the Merchant Shipping (Maritime Claims Limitation of Liability) Act 1989, as amended. As set out in 5.2 Maritime Liens , the time limit for fil - ing maritime passenger claims under the Athens Con - vention is two years calculated from either the date of disembarkation or the date when disembarkation should have occurred. Owners/carriers may limit liability where the loss resulted from a shipping incident or other onboard occurrence, unless the passenger proves that either: • the damage resulted from the carrier’s fault or neglect; or • the carrier acted recklessly and with knowledge that such damage would probably result. Separate limits apply for: • cabin luggage; • vehicles and luggage carried in or on vehicles; and • other luggage. Owners may rely on these limits unless the passenger proves intentional or reckless conduct with knowledge of probable damage. Although claims for personal injury would likely be recognised as a maritime lien (as mentioned in 5.2 Maritime Liens , so long as they are in direct connec - tion with the operation of the ship), the same would not be the case for claims for indemnities for personal injuries.
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