The Futility of Unification and Harmonization in International ...

process. As predicted, the instrument takes the form of clear and precise rules that constrain futuredecisionmakers, and in substance the constraints favor the interested and involved industry.What, then, should we make of the current legal regime for carriage of goods by sea? Adoptionof the Hague Rules no doubt reduced legal risks, one of the principal objectives of unificationprojects, but at what cost? It seems unlikely that the Hague Rules substituted “good” law for badrules, and from the perspective of passengers and shippers the reverse may have been true. Nor isit likely that they helped to build up a cadre of specialist intermediaries whose expertise in sea carriagelaw allowed them to act more broadly as brokers for the transportation industry. To the contrary,the Convention if anything seemed to strengthen the position of lawyers tied to the carriers relativeto everyone else.This assessment may seem too harsh. To identify the Hague Rules as special interest legislationis not necessarily to condemn it. Imposing the costs of accidents on passengers and shippers, ratherthan concentrating them on the carriers, may have helped in the development of new technologies.The net gains that passengers and carriers have derived from improvements in air service may haveoutweighed the burdens that the Hague Rules imposed on them. Perhaps no better way existed todeal with the problem.But another story also suggests itself. Where government regulation limits entry into an industry,price competition among its members, and the prices charged consumers, the industry may turn tomandatory rules of contract as the only convenient means for extracting monopoly rents. By the timethe Hague Rules appeared, such regulation existed at least in the United States and the UnitedKingdom, two of the leading maritime nations of the day. The carriers surely anticipated that withintheir government-maintained cartel, they could gouge consumers through shoddy service, but not byraising prices. The Hague Rules may have served to implement this strategy.The broader point is not that the technocratic process necessarily produced bad legislation.Rather, it seems that the use of technical experts at the center of an international process resulted ina kind of legislation that we might expect from the most venal of domestic political bodies. The bestwe can say is that the international technocrats did not produce a law that is provably worse thanwhat any other lawmaker might have enacted. This claim, however, falls far short of a ringingendorsement of the process.2. Air Transport—The Warsaw ConventionOnce the commercial possibilities of air transport became clear, carriers had to confront theconsequences of breakdowns in service. Airplane accidents, when they occur, tend to result ingreater damage to passengers and cargo than when ships, trains, or trucks encounter trouble. In theearly years of the industry, the legal consequences of these accidents remained unclear. Was a carrierliable for all injuries caused by its activity because it engaged in an ultrahazardous activity? Didpassengers and shippers proceed at their own risk when they contracted with an air carrier, given theobvious dangers? What would be the appropriate standard of care applicable to air carriers, if any?19