This book is intended for those whose practice involves maritime transport, charterparties and bills of lading. It seeks to explain how the law works in reality. In practice, the law is reflected in judicial decisions.
The book therefore describes maritime law relating to charterparties and bills of lading on the basis of judgments. With regard to bills of lading, it concerns mainly Dutch judgments. Many Dutch judgments have been rendered in this field over time. In a few cases, attention is also paid to English law, such as a few notable judgments of the House of Lords/Supreme Court. The situation with regard to charterparties is completely different. Book 8 Civil Code contains only a few provisions specifically written for charters, and there are few judicial and arbitral decisions in this area. One cannot describe Dutch charterparty law using only Book 8 and Dutch judgments. English law, on the other hand, contains very many judgments on charterparties. Moreover, English law can be considered leading in the maritime field. This book therefore describes charterparty law mainly by means of English judgments. It sometimes indicates why a Dutch court is expected to rule differently from the English courts in a particular case.
PART I General considerations
1 DUTCH LAW AND ENGLISH LAW
§ 1 The importance of English law
§ 2 Dutch law and English law
§ 3 Different concepts of law; typical concepts of English law
§ 4 Dutch legal concepts not known in the English common law
§ 5 The method followed in this book
§ 6 A few provisions of Dutch procedural law
2 THE REGULATION OF BOOK 8 DUTCH CIVIL CODE (INTRODUCTION)
3 SUMMARY OF THE PROVISIONS OF TITLES 5-1, 5-2 AND 5-20 OF BOOK 8
§ 1 Title 5-1 (General provisions)
§ 2 Title 5-2 (Contracts of carriage of goods by sea)
§ 3 Title 5-20 (Prescription and lapse of time)
4 DOCUMENTS USED IN RESPECT OF THE CARRIAGE OF GOODS
5 THE LIABILITY SYSTEM
6 THE CONTRACT OF CARRIAGE
7 CONTRACTS OF CARRIAGE AND CHARTERPARTIES
§ 1 The relationship between contracts of carriage and charterparties
§ 2 Other types of charterparties
§ 3 Topics related to charterparties
8 CHARTERPARTY AND BILL OF LADING; THE ISSUE OF BILLS OF LADING FOR CARGO SHIPPED ON A CHARTERED VESSEL
§ 1 Bills of lading for cargo shipped on a chartered vessel
§ 2 Other aspects of the relationship between charter and bill of lading
9 RIGHT OF RETENTION OF THE CARGO
§ 1 Basic principles
§ 2 Incorporation of charterparty provisions with respect to the arbitration clause in the charterparty
§ 3 Incorporation of charterparty provisions with respect to demurrage
10 INCORPORATION OF CHARTERPARTIES IN THE BILL OF LADING
§ 1 Basic principles
§ 2 Incorporation of charterparty provisions with respect to the arbitration clause in the charterparty
§ 3 Incorporation of charterparty provisions with respect to demurrage
11 CONTRACTS OF SALE (FOB, CIF)
§ 1 FOB contract; who is entitled to receive the bill of lading and who should be considered shipper?
§ 2 CIF contract
12 THE SIGNING OF BILLS OF LADING ON BEHALF OF THE MASTER
§ 1 Dutch law
§ 2 English law
13 TORT CLAIM; THIRD-PARTY EFFECT OF CONTRACTUAL PROVISIONS
§ 1 Dutch law
§ 2 English law
14 VARIA
§ 1 The calculation of damages
§ 2 Cargo claim instituted in the Rotterdam Court and in arbitration in London
§ 3 Severe damage to the vessel
§ 4 Termination of long-term performance contract
§ 5 Rights of the mortgagee
PART II Carriage under bills of lading and Hague Visby Rules
1 THE APPLICATION OF THE HVR AND THE INFORMATION TO BE MENTIONED IN THE BILL OF LADING
§ 1 The scope of application of the HVR
§ 2 Information to be mentioned in a bill of lading
2 THE LIABILITY SYSTEM OF THE HVR – THE OBLIGATIONS
§ 1 Article 3 paragraph 1 (seaworthiness obligation)
§ 2 Article 3 paragraph 2 (obligation to exercise proper care for the cargo)
3 THE LIABILITY SYSTEM OF THE HVR – THE EXCEPTIONS
§ 1 Article 4 paragraph 1
§ 2 Article 4 paragraph 2 (a)-(q)
4 APPLICATION OF THE LIABILITY RULES
§ 1 The first step
§ 2 The next steps
5 THE ALLOCATION OF THE BURDEN OF PROOF
§ 1 The first step
§ 2 The next steps
6 NOTIFICATION AND INSPECTION WITH RESPECT TO LOSS AND DAMAGE; TIME BAR
7 CALCULATION AND LIMITATION OF DAMAGES
§ 1 The Hague Rules limitation
§ 2 The Hague Visby Rules limitation
§ 3 Calculation of damages
8 LIABIITY OF THE SHIPPER; DANGEROUS CARGOES
§ 1 Liability of the shipper
§ 2 Dangerous cargo
9 OTHER LIABILITY QUESTIONS
§ 1 Claims based on tort; Article 4bis HVR
§ 2 Deviation (Art 4 paragraph 4 HVR); scope of the voyage clauses
§ 3 Delay
§ 4 The relationship between cargo’s share in general average/salvage and the contract of carriage (Art 8:389)
10 CAUSATION
11 CLAUSES IN BILLS OF LADING
§ 1 Paramount clause
§ 1a Dutch law
§ 1.2 English law
§ 2 FIOS
§ 2.1 Dutch law
§ 2.2 English law
§ 3 Freight (prepaid)
§ 4 Before and after clause
§ 5 Himalaya clause
§ 5.1 Dutch law
§ 5.2 English law
§ 6 Merchant clause
12 THE ISSUE OF BILLS OF LADING: TITLE TO SUE AND THE CONCEPTION OF CARRIER UNDER A BILL OF LADING
§ 1 Title to sue – regular holder of the bill of lading
§ 2 English law on title to sue
§ 3 Spent bills of lading
PART III Voyage charters
1 BASIC CHARACTERISTICS
§ 1 Introduction
§ 2 Parties, ship, cargo, ports of loading and discharge
§ 3 The preliminary voyage and cancellation clause
§ 4 Proceeding on the voyage and the route to be followed; deviation
§ 5 Safe port and berth
2 LAYTIME AND DEMURRAGE
§ 1 General
§ 2 Container demurrage; hire of containers
3 OTHER CHARTERPARTY CLAUSES
§ 1 Strike clauses
§ 2 Freight and deadfreight
§ 3 Loading operation
§ 4 Owners’ Responsibility Clause (clause 2 of the Gencon charter)
§ 4.1 English law
§ 4.2 Dutch law
§ 5 Deck cargo (clause 1 of the Gencon charter) – at charterers’ risk
§ 6 Indemnity for excess liability
§ 7 Cesser clause
4 DIFFERENT MATTERS
§ 1 Stevedore damage
§ 2 Obligation of the owner to have the vessel repaired in order to continue
§ 3 The liberty to tranship the cargo (English law)
§ 4 Termination of the charterparty while the cargo is still on board (Dutch law)
PART IV Time charters
1 BASIC CHARACTERISTICS
§ 1 Introduction
§ 2 Bunkers
§ 3 Permissible cargo
§ 4 Vessel to be seaworthy
§ 5 Problems relating to delivery, substitution during the currency of the charter
§ 6 The length of the charter period (delivery and redelivery)
§ 7 Payment of hire
§ 8 Speed and bunker consumption
2 VARIOUS CLAUSES
§ 1 Safe ports
§ 2 Withdrawal clause
§ 3 Off hire
§ 4 Employment and Agency clause
3 LIABILITY QUESTIONS
§ 1 Right of the owners or the charterers to be indemnified
§ 2 Redelivery in the same good order and condition
§ 3 Time charterparties and bills of lading
§ 4 Liability for cargo claims
§ 5 Stevedore damage
§ 6 Claims against the time charterer and insolvency of the time charterer
§ 7 The consequences of damage to the vessel
§ 8 Cooperation with respect of survey and inspection in case of damage
Table of Cases
1 Dutch cases
2 English cases
Hague Visby Rules
Bibliography
Index