New article 74 ter(2) Declaratory actions brought by the carrier and the maritime performing party

Such obligations are found in treaty law (in particular, at the bilateral level) and in declaratory instruments.

However, it was also suggested that the provision should be limited to carrier actions for declaratory relief and that it should not prevent the carrier from instituting actions other than for declaratory relief, such as actions for the payment of freight, in the appropriate jurisdiction of its choosing.

One view was expressed that this might not achieve the purpose because an action for declaratory relief was not an action against the carrier .

The judge stated that he had determined that on the factual merits there is no support for the granting of any declaratory or injunctive relief .

The response to legal abuses has often been timid or declaratory, carried out by individual countries or communities like the European Union in response to specific violations.

But, even in compelling circumstances, the Committee's procedural rules have not permitted the Committee to engage in a declaratory judgement, or to accept petitions on behalf of a general class of individuals.

It was indicated that the proposed text for draft article 74 ter(2) was intended to prevent the carrier from seeking declaratory relief to circumvent the connecting factors used in the draft instrument to establish jurisdiction.

The only domestic difference between the cases being that Singer concerned a declaratory proceeding brought by Singer's corporation, while the present case concerns a prosecution against the authors' corporation, the authors invite the Committee to apply Singer.

3. Local remedies shall be exhausted where an international claim, or request for a declaratory judgement related to the claim, is brought preponderantly on the basis of an injury to a national or other person referred to in draft article 8.

The proposed text for draft article 74 ter (2) should be inserted in the draft instrument for further consideration in light of the opinions expressed above, in particular, limiting its application to declaratory relief sought by the carrier or the maritime performing party.

Regarding draft article 15, it was considered important that the exhaustion of local remedies rule applied only to an international claim or a request for a declaratory judgment and not to other diplomatic measures covered by the concept of diplomatic protection as defined in draft article 1.

It was suggested that clarification was needed with respect to the possibility for the carrier to bring an action for declaratory relief in one of the jurisdictions established by the connecting factors under draft article 72, and for the cargo claimant to demand removal of such action to another of these jurisdictions.

3.4 The author adds that the absence of any remedy, other than a merely declaratory judgement of the Supreme Court which did not require the legislator or the executive to take any immediate measures to respect the Covenant, breached his right to an effective remedy under article 26, read in conjunction with article 2, paragraph 3, of the Covenant.