Sie sind auf Seite 1von 8

Transport plays a vital role in the economic development of a country . It facilitates the movement of goods and labour .

The commercial life of any country, the need for carrying goods from one place to another cannot be over emphasized. Also, goods are to be moved from one country to another. For these purposes, a contract of carriage is to be entered into. The persons, organizations or associations which carry goods are known as carriers.

What is carriage:

Kinds of carriage:

Goods may be carried by land (including inland waterways), sea or air. Accordingly, the law relating to carrying of goods is contained in the following enactments: 1. In case of carriage of goods by land: The Carriers Act, 1865. 2. In case of carriage of goods by sea: (i) The Carriage of Goods by Sea Act, 1925. (ii) The Marine insurance Act, 1963. 3. In the case of carriage of goods by air: The Carriage by Air Act, 1972.

Definition of a Contract of Carriage: A contract whereby a person or company agrees to carry goods
from one place to another in return for a payment is known as a contract of carriage.

What is carriage of goods by sea: The Carriage of Goods by Sea Act is a governing the rights and
responsibilities between shippers of cargo and ship-owners regarding ocean shipments. It is enactment of the International Convention Regarding Bills of Lading, 1856, commonly known as the "Hague Rules", The carriage of Goods by sea Act, 1925.

Contract Of Affreightment
Contract of Affreightment is the expression usually employed to describe the contract between a shipowner and another person called the charterer, by which the ship-owner agrees to carry goods of the charterer in his ship, or to give to the charterer the use of the whole or part of the cargo-carrying space of the ship for the carriage of his goods on a specified voyage or voyages or for a specified time. The charterer on his part agrees to pay a specified price, called freight, for the carriage of the goods or the use of the ship. A ship may be let like a house to a person who takes possession and control of it for a specified term. The person who hires a ship in this way occupies during the specified time the position of ship-owner. The contract by which a ship is so let may be called a charter-party; but it is not, properly speaking, a contract of affreightment, and is mentioned here only because it is necessary to remember the distinction between a charter-party of this kind, which is sometimes called a demise of the ship, and a charter-party which is a form of contract of affreightment.

Charter types
y A voyage charter is the hiring of a vessel and crew for a voyage between a load port and a discharge port. The charterer pays the vessel owner on a per-ton or lump-sum basis. The owner pays the port costs (excluding stevedoring), fuel costs and crew costs. y A time charter is the hiring of a vessel for a specific period of time; the owner still manages the vessel but the charterer selects the ports and directs the vessel where to go. The charterer pays for all fuel the vessel consumes, port charges, and a daily 'hire' to the owner of the vessel.

y A demise charter shifts the control and possession of the vessel; the charterer takes full control of the vessel along with the legal and financial responsibility for it. y A charter without demise, the charterer only gets the right to have his goods conveyed by the ship and the captain and the crew do not become his servants and the possession and control of the ship remain with the ship-owner.

Charter-parties are, as we have already explained, either for a voyage or for a period of time. (1) A charter-party for a voyage is a formal agreement made between the owner of the vessel and the charterers by which it is agreed that the vessel being tight, staunch and strong, and every way fitted for the voyage, shall load at a certain named place a full cargo either of goods of a specified description or of general merchandise, and being so loaded shall proceed with all possible dispatch either to a specified place or to a place to be named at a specified port of call, and there deliver the cargo to the charterers or their assigns. . (2) A time charter-party is a contract between the shipowner and charterers, by which the shipowner agrees to let and the charterers to hire the vessel for a specified term for employment, either generally in any lawful trade or upon voyages within certain limits. A place is usually named at which the vessel is to be re-delivered to the owners at the end of the term, and the freight is payable until such re-delivery; the owner almost always pays the wages of the master and crew, and the charterers provide coals and pay port charges; the freight is usually fixed at a certain rate per gross register ton per month, and made payable monthly in advance, and provision is made for suspension of hire in certain cases if the vessel is disabled; the master, though he usually is and remains the servant of the owner, is required to obey the orders of the charterers as regards the employment of the vessel, they agreeing to indemnify the owners from all liability to which they may be exposed by the master signing bills of lading or otherwise complying with the orders of the charterers; and the contract is made subject to exceptions similar to those in bills of lading and voyage charter-parties. This is the general outline of the ordinary form of a time charter-party, but the forms and their clauses vary, of course, very much, according to the circumstances of each case.

Clause of charter-party
A charter-party may contain these clauses.

Bunker clause
A bunker clause stipulates that owners shall accept and pay for all fuel oil in the vessel's bunkers at port of delivery and conversely, charterer shall pay for all fuel oil in the vessel's bunkers at port of re-delivery at current price at the respective ports. It is customary to agree upon a certain minimum and maximum quantity in bunkers on re-delivery of the vessel.

Ship clause
under this clause, the owner of the ship writes clearly that the ship w

Ice clause
An ice clause is inserted in a bill of lading or a charter-party when a vessel is bound for a port or ports which may be closed to shipping by ice when the vessel arrives or after the vessel's arrival.

Lighter age clause

A lighterage clause is inserted into charter-parties which show as port of discharge any safe port in a certain range, e.g. Havre/Hamburg range.

Negligence clause
A negligence clause tends to exclude ship owner s or carrier's liability for loss or damage resulting from an act, default or neglect of the master, mariner, pilot or the servants of the carrier in the navigation of manoeuvring of a ship, not resulting, however, from want of due diligence by the owners of the ship or any of them or by the ship's husband or manager.

Ready berth clause

A ready berth clause is inserted in a charter-party, i.e. a stipulation to the effect that lay days will begin to count as soon as the vessel has arrived at the port of loading or discharge "whether in berth or not". It protects shipowner's interests against delays which arise from ships having to wait for a berth.

Usual Clauses Of Charter party

It is open to the parties to include in a charter party or contract of affreightment any lawful terms. But many such terms have now become more or less stereotyped and are known as usual clauses of a charter party. The use of these laws depends upon its relative importance some of such terms are:

1. Ready to Load.
Charter party usually contains a statement as t the position of the ship. In certain circumstances such a statement may become the term of the contract. Any breach of this term entitles the charter to repudiate the contract. For example, in Bentsen v. Taylor sons and Co , a charter party dated march 29 descried the ship as now sailed or about to sale to the United Kingdom , and that the ship after discharging homeward cargo, shall proceed to load. But in fact she sailed to the United Kingdom on April 23. The parties then entered into correspondence. The ship arrived and the charterers refused to load. The court went on to hold that the main substance of the contract was the description of the ship as now sailed or about to sail . The court then took a look into the subject and went on to hold that the above said description is not a mere warranty and so the defendants had the right to repudiate the contract. But their correspondence amounted to waiver such right to repudiate and they were liable for their freight subject to their right to recover such damages as they could prove that they had sustained by reason of the breach of the condition. The court then looked into the clause that the ship is expected ready to load at a given date. But the court went on to hold that this does not mean that the ship must not be in such a position, it only means that there must be a honest belief, founded on reasonable grounds, that the ship will be load at that date. But the ship at that was not ready to load until a long time after wards but a representation was made without any reasonable grounds for making it and this was a breach of condition. Similarly any statement as to the position of the ship may also be considered as a condition. For instance the words that the ship was now in a port of Amsterdam were held to be a warranty or condition precedent . A statement by the owner that the ship is expected ready to load under this charter about July 1 1965 has been held to be a condition .

2.Fit for Voyage

Charter parties usually provide that ship shall be tight, staunch and strong and every way fitted for the voyage . The court of Appeal has admitted in Hong Kong fir Shipping Co Ltd v. Kawasaki Kisen Kaisha Ltd that it is difficult to distinguish whether such statements are conditions or mere warranty. In this case a charter party provided that the ship was in every way fitted for ordinary cargo services . The experience of the voyage was different as the ship kept breaking down time to time. Actually this was due to incompetence and inadequacy of the engine room staff. But it was held that the statement as to the seaworthiness of the ship was not a condition and the charterers were restrained from repudiating the contract.

3. Full and Complete Cargo

Full and complete cargo means that the charterer undertakes to supply the agreed cargo lest the ship owner may suffer loss of freight. In Heathfield Co Ltd v. Rodenacher, the charterer refuses to load more than 2673 tonnes. But the full and complete cargo would have been 2950 tonnes. The court held that the charterer ought to have loaded full complete cargo and freight was payable accordingly. In another case, the charterer agreed to load cargo not less than 6500 tones and not exceeding 7000 tones. The court laid down that the words not less than 6500 tonnes was a warranty given by the ship owner to the charterer that that much quantity can be loaded and the words not exceeding 7000 tones was a binding condition preventing the ship owner from asking more quantity than 7000 tonnes. In this case the ship owner asked for more than 7000 tonnes and the charterer was forced to bring than quantity. He brought that under duress and protest. Now the ship owner claimed extra freight for that extra quantity. But the ship owner was not allowed to recover the extra freight for that extra quantity. The ship owner is also bound to provide sufficient space on board for full and complete cargo.

4. Kings Enemies and Restraints of Princes

The charter parties usually provide that the ship owner would not be liable in certain events. For example there would be no liability on events arising out of act of god or because of national enemies . Such perils or dangers are known as excepted perils. The words King s enemies mean the enemies of the country or the sovereign of the person who made the bill of lading. All restraints or interruptions made by any lawful authority are considered as Restraints of Princes . The dangers from the sea pirates are not included in this category. In a decided case a ship owner was justified in the non performance of a contract which involved the voyage through turkey. It was obvious that the ship would be seized because of the war between Turkey and Greece . In this case the war has already been declared but if there was only a mere speculation that there would be a war, the charterer cannot be justified if he repudiates the contract. A voyage, which involved the risk of the ship being sunk by the German submarines, was held to be one that involves the risk of seizure or capture . If the intervention of the restraint is due to the negligence of the ship owner, he cannot avail the exception of this clause

5. Perils of Sea
Charter parties also contain an exception in favour of the dangers of the sea, i.e., if the goods are lost or damaged on account of a peril of the sea, the ship owner would not be held liable. The term peril of the sea does not cover every accident or causality which may occur to the goods in the ship. It must be a peril of the sea. The natural action of winds and waves is not considered as perils of sea. There must be some causality, some which could not be foreseen as one of the incidence of the adventure.

Bills of lading
A bill of lading is a document issued by a carrier to a shipper, acknowledging that specified goods have been received on board as cargo for conveyance to a named place for delivery to the consignee who is usually identified. A thorough bill of lading involves the use of at least two different modes of transport from road, rail, air, and sea. The term derives from the verb "to lade" which means to load a cargo onto a ship or other form of transportation.

A bill of lading can be used as a traded object. The standard short form bill of lading is evidence of the contract of carriage of goods and it serves a number of purposes: It is evidence that a valid contract of carriage, or a chartering contract, exists, and it may incorporate the full terms of the contract between the consignor and the carrier by reference (i.e. the short form simply refers to the main contract as an existing document, whereas the long form of a bill of lading (connaissement intgral) issued by the carrier sets out all the terms of the contract of carriage); It is a receipt signed by the carrier confirming whether goods matching the contract description have been received in good condition (a bill will be described as clean if the goods have been received on board in apparent good condition and stowed ready for transport); and It is also a document of transfer, being freely transferable but not a negotiable instrument in the legal sense, i.e. it governs all the legal aspects of physical carriage, and, like a cheque or other negotiable instrument, it may be endorsed affecting ownership of the goods actually being carried. This matches everyday experience in that the contract a person might make with a commercial carrier like FedEx for mostly airway parcels, is separate from any contract for the sale of the goods to be carried; however, it binds the carrier to its terms, irrespectively of who the actual holder of the B/L, and owner of the goods, may be at a specific moment.

Requisites of Bill of Lading

Under the Carriage of Goods by Sea Act,1925, a bill of lading must contain the following: 1. It must contain an express statement that it is to have effect subject to the rules laid down in this Act 2. It must contain statements showing among other things: I. The leading marks necessary for identification of the goods as the same are furnished in writing by the shipper before the loading of such goods starts provided such marks are stamped pr otherwise shown clearly upon the goods if uncovered or on the case or covering in which such goods are contained, in such manner as should ordinarily remain legible until the end of the voyage; II. The number of packages or pieces, or the quantity, or weight, as the case may be, as furnished in writing by the shipper; III. The apparent order and condition of the goods: Provided that no carrier, master or agent of the carrier, shall be bound to state or show in the bill of lading any marks, number, quantity or weight which has reasonable ground for suspecting not accurately to represent the goods actually received, of which he has had no reasonable means of checking.

Difference Between a Bill of Lading And Charter Party

The two documents differ from each other in the following respect: A bill of lading is an evidence of the respect of the goods on board the ship as well as an evidence of the contract for the carriage of goods. A charter party is only a contract relating to the hiring of the entire or principal part of the ship. A bill of lading is a document of title to the goods specified therein, a charter party is not such a document. A bill of lading, being a document of title to the goods, can be transferred by endorsement and delivery. A charter party is not transferable since it is a contract of hire. A charter party may amount to a lease of the ship, a bill of lading conveys no such implication. A charter party may be for a particular voyage or for a particular period of time, whereas a bill of lading is always for a particular destination.

Duties Of A Carrier By Sea

The carriage of goods by sea Act, 1925 lays down that under every contract of carriage of goods by sea the carrier shall be subject the following responsibilities:

The carrier, I.E, the ship-owner shall be bound, before and at the beginning of voyage, to exercise due diligence to: Make the ship seaworthy, Properly man, equip and supply the ship, Make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for there reception, carriage and preservation. The carrier must properly and carefully load, handle, stow, carry, keep, care for and discharge the goods carried. After receiving the goods into his charge, the carrier or the master or agent of the carrier must, on demand shipper, issue to the shipper a bill of lading containing the prescribed particulars.

Liabilities of carrier by sea

The Carriage of Goods by Sea Act 1925 lays down the following rules regarding the liabilities of a carrier of goods by sea: A carrier of goods by sea, I.e, a ship-owner is liable only for loss or damage arising or resulting from his negligence, fault or failure in the duties and obligations provided in this act, and not otherwise. He is not liable even for the loss caused by the neglect or default of the master ,mariner, pilot, or the crew in the navigation A ship-owner can not limit or lessen his liability arising from his negligence or failure in the duties and any clause in the contract to that effect shall be null and void and inoperative. The carrier shall not be liable in any event for loss or damage to the goods if the nature or value thereof has been knowingly misstated by the shipper in the bill of lading. The carrier shall not be liable in any event for any loss or damage to the goods in an amount exceeding Tk 100 per package or unit, unless the nature and value of such goods have been declared by the shipper and inserted in the bill of lading. But the carrier and the shipper may, by agreement, fix another maximum amount than that mentioned in this paragraph, provided that such maximum shall not be less than the figure above named. The carrier shall be discharged from all liability for loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered.

Maritime lien
A maritime lien in admiralty law is a privileged claim upon maritime property, such as a ship, in respect of services rendered to, or the injuries caused by that property. In common law, a lien is the right of the creditor to retain the properties of his debtor until the debt is paid. It is a proprietary lien which interest is about the res (property). It should be understood that res may be the vessel (including their appurtenances and equipments), the cargo, the freight or even the proceeds of sale. The rights include jus in re (right on the property) and jus in rem (right against the property). The doctrine of Maritime Lien is that ship will be treated as a wrongdoer, not the owner, that the loss, damage or harm is caused by the maritime property, itself, and it has to make good for the loss. The attachment of maritime lien will star to the related property when the cause of action arises and will not be eliminated even the change of ownership in good faith purchase. Normally, Maritime Lien is raised by the different marine transactions in the admiralty jurisdiction and creates the maritime claims. It will be created by the statute such as the Ship Mortgage Act.

Characteristics of maritime lien

The Characteristics of Maritime Lien are shown as following: Wages of the ships master and crew

Salvage operations General average claims Claims fir the breach of a charter party Preferred ship mortgages Claims under maritime contracts for repairs, supplies, towage, pilotage and a wide variety of other necessaries Claims for maritime torts including personal injury and death, and collision claims Claims for the damage or loss of cargo Claim by the carrier of cargo for unpaid freight and demurrage Pollution claims Although there is a list recognized by the admiralty jurisdiction, the definition and criteria are not the same case by case under different maritime law. For example, bunker suppliers are not protected by maritime lien under UK law. On the contrary, the supply of bunker has the right of lien in US. The court needs long time to recognize the form of lien and a new form will be established under new condition in future.

Distinguished from shipowners lien

Shipowner s Lien is a possessory lien which is the major difference with maritime lien. It meant that the right could be applied on the goods only which are delivering by the shipowner when the shipper is the contractual party. It may entitle the shipowner to retain the cargoes as security for the payment of a debt. The contractual shipowner s lien has a wide extent of the right because the shipowners have this right under all contracts for carriage of goods by sea nowadays if the shippers fail to pay the due on time. However, it is stated that there is no difference between shipowner s lien and maritime lien.

Conflict of Laws and Choice of Law

Proper law is a law to govern the contract, which define the obligation of the contractual parties and make the contract to be valid and legal. It also determinates the effects and condition of discharge. Section of the proper law to justify the marine contract is the difficult task in Admiralty Jurisdiction because the enforcement of the maritime lien entitled by the international law may valid the law of the country where the jurisdiction are. So, the question is what the priority of the law where the lien was created (lex loci) and the law where the jurisdiction exercises (lex fori) is. The answer is both. The application is a multiplicity of contract analysis process. The court will weight and analyze all related factors between the transaction and the legal systems under case-by-case principle. The factors may include: (a)the need of the international system; (b)the protection of justified expectation; (c)ease in determination and application of the law to be applied; (d)relevant policies of other interested states; (e)the place of the wrongful place; (f)the law of flag; (g)the allegiance or domicile of the injured party; (h)the law of forum; (i)the place of the contract; (j)the allegiance of the defendant shipowner and so on. The prefect decision will get the balance between the relevant factors.

Mercantile Law (MC Kuchhal) Law of Carriage Air, Land & Sea ( Avtar Singh) The Merchant Shipping Act, 1985.

The Marine Insurance Act 1963 Wikipedia ( Internet, Web)