The Enforceability of Foreign Collective Agreements
| Author | D. M. Kloss |
| Date | 01 November 1983 |
| Published date | 01 November 1983 |
| DOI | http://doi.org/10.1111/j.1468-2230.1983.tb02552.x |
174
THE
MODERN
LAW
REVIEW
[Vol.
46
(the moral is apparently that it
is
safer to be hard-nosed). The fact
that the appellants had been negligent was also relevant, and
so
also was the fact that seedsmen could insure against the risk of crop
failure caused by the supply of wrong varieties of seeds, without
materially increasing the price of seeds. The evidence on relative
strength
of
bargaining power, and possibility of negotiating alternative
terms considered in isolation was equivocal, because although the
relevant terms had been in general use for many years, the limitation
had never been neigotiated between representative bodies, or protested
by the National Farmers’ Union. Clearly therefore, trade and pro-
fessional associatitons which fail
in
the duty to be vigilant in protecting
their members by protesting against onerous exemption
or
limitation
clauses could be doing them
a
disservice.
In little over
EL
decade therefore there has been a revolution.
If
Harbutt’s Plasticine
were to be decided today what one wonders would
its outcome be?
JOHN
ADAMS+
THE ENFORCEABILITY
OF
FOREIGN
COLLECTIVE AGREEMENTS
Monterosso Shipping
Co.
Ltd.
v.
International Transport Workers
Federation
is
yet
another case involving the International Transport
Workers’ Federation campaign against flags of convenience ships. The
ship in question,
The
ROSSO,
was registered in Malta but managed by a
Norwegian firm employing Norwegian officers and Spanish crews. The
Spaniards are me:mbers
of
a Spanish trade union affiliated to the
I.T.F.
In November
1979
the I.T.F., agreed to give
The
Rosso
a blue certificate
promising that the ship would be free to trade throughout the world
without fear
of
being held in port by I.T.F.
“
blacking
”
action. This
agreement was concluded in Spain on a printed form issued by the
I.T.F.
headquarters in London and in the English language.
A
few
months later, thle ship began
a
regular run between two Swedish ports
and the Swedish Seamen’s Union objected to the Spanish crews. The
I.T.F. gave notice that they wished to terminate the existing blue
certificate and replace it with one that required the shipowners to employ
Swedes for the Swedish run. Understandably, the Spainiards were
opposed to this, and
in
November
1980
the I.T.F.’s Spanish agent,
without authority, signed a new agreement in Spain renewing the blue
certificate withost including the Swedish clause. The I.T.F. disowned
the agreement and
The
Rosso
was held in
a
Swedish port, whereupon
the shipowners brought an action
jn
the English courts claiming
damages from the
I.T.F.
for breach
of
contract.
The
preliminary question which was raised was whether the proper
law of the agreement between the shipowners and the I.T.F. was
*
Senior
Lecturer
in
Law,
University
of
Kent at Canterbury.
[1982)
I.C.R.
675,
[I9821
3
All
E.R.
841.
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