Maritime Law

Introduction

• The charterparty
• The bill of lading contract
• Charterers’ bills of lading
• The demise charterparty

Implied obligations in a contract of affreightment

The undertaking as to seaworthiness

• Nature of the obligation
• Incidence of obligation
• Burden of proof
• Effect of breach

Obligation for reasonable dispatch

• Effect of breach

Obligation not to deviate from the agreed route

• Justifiable deviations
• Liberty clauses
• The effect of breach

The obligation to nominate a safe port

• The period covered by the warranty
• The nature of the risks covered
• The nature of the undertaking – remedies available for breach
• The scope of the undertaking

The obligation not to ship dangerous goods

• Meaning of dangerous goods
• Nature of liability
• Liability under the Hague/Visby Rules
• Statutory regulation

The effect of frustration

• Types of frustration
• Factors to be taken into consideration
• Effect of frustration

The voyage charterparty

An overview of the charter

• Introductory clauses
• Cargo clauses
• Freight clauses
• Laytime provisions
• Other clauses
• Performance of the charterparty

The arrived ship

• Charterparty provisions shifting risk of delay
• Readiness to load or discharge

The preliminary voyage

• Nomination of port of loading
• ‘Or so near thereto as she may safely get’
• The voyage to the loading port

The loading operation

• Division of responsibility
• Provision of cargo
• Laytime
• Demurrage and damages for detention

The carrying voyage

The discharging operation

• Delivery

The time charterparty

General legal overview

• Clause describing vessel
• The charter period
• Off-hire
• Payment of hire – right to withdraw for non-payment
• Employment and indemnity clause
• Return to the vessel

Description of the vessel

Period of hire

• Specific clauses
• Effect of overlap

Payment for hire

• Payment in cash
• Payment in advance

The off-hire clause

• Period of off-hire
• Effects of the operation of the off-hire clause

Deductions from hire

Right to withdraw vessel for non-payment of hire

• Requirements for exercise of right of withdrawal
• Waiver of right to withdraw
• Possible bars to exercise of the right of withdrawal
• Effect of exercise of right to withdraw

Employment and agency clause

Redelivery of the vessel

Bills of lading and their functions

Historical introduction

Functions of a bill of lading

• As receipt for goods shipped
• As evidence of the contract of carriage
• As a document of title

Presentation of a bill of lading

Problems in presentation

• Short form bill of lading
• The waybill
• The straight bill of lading
• The registry system
• A possible practical solution

Electronic bills of lading

• Atlantic Container Line datafreight system
• Electronic data exchange systems
• Bolero

Switch bills

Application of the Hague/Visby Rules

Application of the Rules

• Types of carriage covered by the Rules
• The cargoes excluded
• Period of coverage of the Rules

Legal effect of the Rules

Basic provisions of the Hague/Visby Rules

• Duties of the carrier
• Rights and immunities of the carrier
• Other provisions

Incorporation of the Hague /Visby Rules in charterparties

• Effect of incorporation

Bills of lading – Hamburg Rules

• Introduction
• Scope of application of the Rules
• Basic carrier liability
• Limitation of liability
• Loss of right to limit liability
• Other provisions
• Prospects for adoption of the Hamburg Rules
• Later developments
• The CMI/UNCITRAL project

Bills of lading issued under charterparties

• Where bill of lading issued to charterer
• Where bill issued to third-party shipper
• Who is the carrier?
• What are the terms of the contract?
• Where bills indorsed by charterer to a third party
• Shipowner’s recourse against charterer

Problems of combined transport

The liability of the carrier

• Locating damage or loss
• Limitation of liability
• Claims in tort
• Combined transport and documentary and credits
• Effect of transhipment
• Transhipment and documentary credits
• Multimodal Convention 1980

Exceptions

Common law exceptions

• Act of God
• Act of the Queen’s enemies
• Inherent vice

Contractual exceptions

• Perils of the sea
• Restraint of princes
• Strikes or lockouts
• Defective packing

The Hague/Visby exceptions

• Act, neglect, or default of the master, mariner, pilot or the servants of the carrier in the navigation or in the management of the ship
• Fire, unless caused by the actual fault or privity of the carrier
• The catch–all exception

Bars to the exceptions

• Negligence
• Unseaworthiness
• Fundamental breach

Limitation of liability

Merchant Shipping Act 1995

• Parties covered
• Types of claim covered
• Limitation amount
• Breaking the limits

Freight

The basic obligation

• Calculation of freight
• Deductions from freight
• The effect of deviation

Advance freight

Specialised types of freight

• Lump sum freight
• Pro-rata freight
• Back freight
• Dead freight

Payment of freight

• Party from whom freight due
• Party from whom freight payable

Shipowners’ liens

Liens at common law

• Requirements for the exercise of the common law lien for freight

Express contractual liens

• Characteristic of contractual lien

Dispute settlement

Problems of conflicts of laws

• Jurisdiction of the English courts
• Choice of forum
• Choice of law clause

Security for claims

• The action in rem
• The freezing injunction

Arbitration

• The Arbitration Act 1996
• Basic principles
• Types of arbitration
• Commencement of arbitration
• Appeal from arbitration award
• Other challenges to an award
• Control by the court of arbitration proceedings
• Enforcement of arbitration awards

Breach of contract

Forms of breach

• Anticipatory breach

The effects of breach

• Conditions and warranties
• Intermediate terms
• The effects of a repudiatory breach

The action for damages

• Remoteness of damage
• Measure of damages
• Other relevant considerations in assessing damages

Remedies other than remedies

• Specific performance
• Injunction