Legal Issues Relating to Time Charterparties

Cover
Half Title
Title Page
Copyright Page
Foreword
Preface
Table of Contents
Authors’ Biographies
Table of Cases
Table of Legislation
Chapter 1: Standard Forms – The Bimco Experience
	Introduction
	Objectives
	The Documentary Process
		Market Research
		Types of Form
	The drafting process
		Subcommittee composition
		Drafting work
		Project timescale
		Key Documentary Issues
			Box Layout
			Core Clauses
			Trade Specific Clauses
			Liability Regime
			Protective Clauses
	Publication
	Marketing
	Availability of Provisions to Entire Shipping Industry
	Information Technology and IDEA
		Paper Versus Pixel
	BIMCO Time Charterparties
		BALTIME 1939 (as revised 2001)
		NYPE 93
		GENTIME
			General
			Period and Delivery (Clause 1)
			Trading Areas (Clause 2)
			Cargo Restrictions etc. (Clause 3)
			Redelivery (Clause 4)
			Bunkers (Clause 6)
			Vessel’s Gear (Clause 7)
			Hire (Clause 8)
			Off-hire (Clause 9)
			Owners’ Obligations (Clause 11)
			Master (Clause 12)
			Charterers’ Obligations (Clause 13)
			Owners’ Requirements (Clause 14)
			Charterers’ Requirements (Clause 15)
			Sundry Matters (Clause 16)
			Liabilities
			Bills of Lading (Clause 17)
			Responsibilities (Clause 18)
			Exceptions (Clause 19)
			Insurances (Clause 20)
			War Risks (Clause 21)
			Law and Arbitration (Clause 22)
			Commission (Clause 23)
			Notices (Clause 24)
		SUPPLYTIME 2005
	Conclusion
Chapter 2: Construing Terms in Time Charterparties – Beginning of a New Era or Business as Usual?
	Introduction
	Lord Hoffmann’s Restatement and Emerging issues
		Common Sense Approach to Interpretation
		Dumping the Old Intellectual Baggage of Legal Interpretation
			(a) Ejusdem Generis
			(b) Expressio Uniun Est Exclusio Alterius
			(c) Typed or Hand-written Conditions Taking Precedence Over Standard Printed Conditions
			(d) Construing the Contract as a Whole and Giving Effect to all Parts of the Contract
		Factual Matrix – the Limits of Contextual Construction in Time Charterparties
		Previous Negotiations and Modifications on Standard Charterparty Contracts: Part of the Matrix?
			(a) The Scope of the Rule
			(b) Justification of the Rule and its Role in Construing Charterparties
			(c) Earlier Drafts and Deletions
		Protecting “Reasonable Expectations” of Parties?
	An Economic Perspective
		Contract Efficiency and Literalism
		Economic Reasons for Restricting the Scope of Factual Matrix
		Impact of Judicial Intervention on Contract Efficiency
	Conclusion
Chapter 3: Ascertaining the Charter Period
	Introduction
	Why is it important?
		Damages
		Illegitimate Last Voyages
		Tolerances
		Last Voyage Clauses
		Without Guarantee
Chapter 4: Safe Port Clauses
	Introduction
	A Promissory Obligation
	The Meaning of Safety
		(a) The Scope of Safety
		(b) A Question of Judgement
		(c) Proof of Unsafety: Subsequent Events
	Abnormal Events
	The Timing and Nature of the Charterer’s Promise of Safety
	The Charterer’s Secondary Obligation
	Alternative Wordings
		(a) Due Diligence Clauses
		(b) Safe Berth Clauses
		(c) Narrowing the Scope of Safety
	Third Party
	The Impact on Safe Port Undertakings of Other Charterparty Terms
	Named Ports
	Implied Safe Port Obligations
	Rejecting the Nomination of a (Possibly) Unsafe Port
	Remedies for Breach of Contract by Nominating an Unsafe Port
	Conclusion
Chapter 5: Seaworthiness and the Hongkong Fir Decision
	Introduction
	An Outline of the Unhappy Voyage of the Hongkong Fir
		Summary of Time Lost
		The Freight Market
		Mr Justice Salmon’s Views on the Crew
		The Decision of Mr Justice Salmon in the English High Court
		The Decision of the Court of Appeal
		Is the Approach of the Judges in the Hongkong Fir Still Valid Today?
Chapter 6: Indemnities in Time Charters
	Introduction
	Indemnity Clauses in Current Form Charterparties
	The Conceptual Basis of the Owner’s Right to an Indemnity
	The Interrelationship with Other Charterparty Terms
	Limitations on the Right of Indemnity: Acts “Manifestly Tortious"
	Indemnity Against What? The Importance of Causation and Foreseeability
	Particular Contexts in Which Claims for an Indemnity Have Been Made
		(a) Where the Bills of Lading Expose the Owner to a Liability Which is Inconsistent with the Terms of a Charterparty
		(b) An Indemnity Against the Consequences of Delivering Cargo Without Production of the Bills of Lading
		(c) Port Risks
		(d) Cargo Risks
		(e) Navigation Risks
Chapter 7: Time Charterparty Hire: Issues Relating to Contractual Remedies for Default and Off-Hire Clauses
	Introduction
	Contractual Remedies for Payment Defaults
		Introduction
		A Sample of Relevant Charterparty Clauses
		Contractual Remedies of Withdrawal and Suspension
		The Legal Effect of Withdrawal and Suspension
		Loss of the Contractual Rights of Withdrawal and Suspension
		Qualifying the Right of Withdrawal/Suspension and/or Protecting Against Unfairness
		The Wider Legal and Commercial Implications of Exercising the Contractual Remedies
		Impact of the Contractual Power to Withdraw on the Characterisation of the Payment Obligation
	The Ambit of Off-Hire Clauses
		Introduction
		The Nature of Off-Hire Clauses
		A Sample of Standard Off-Hire Clauses
			BALTIME 1939 (As Revised 2001) cl.11
			NYPE 1946 cl. 15
			NYPE 93 cl. 17
			GENTIME cl. 9
			BPTIME 3 cl. 19
			SHELLTIME 4 cl.21
		The Province of Off-Hire Clauses
		Preventing the Full Working of the Vessel
		Off-Hire Clauses and External Causes
		Conclusion
Chapter 8: Assignees of Hire: How far can they Ignore Charterer’s Claims Against Owners?
	Introduction
	Scope of the Problem
	The Deduction of Charterer’s Claims from Amounts Payable to the Assignee
	A Sub-Issue: Set-Offs and Liens Over Sub-Hire
	Hire and Deductions: Possible Strategies
	Off-Hire Time and Charterers’ Repayment Claims
	Conclusion
Chapter 9: Time Charterparties and Bills of Lading
	Introduction
		Significance of Time Charters in these Contexts
	A. Master … to Sign Bills of Lading as Presented
		Early Cases on this and Similar Formulae
		Later Developments
		Implied Indemnity
		When can the Master Refuse to Sign?
		Clausing
		Surroundings to this
		Liability in Tort
		Result of Signature of Bills which there was no Duty to Sign
		Signature by Charterer Himself
		Doubtful Indemnities
	B. Bills of Lading Referring to a Charterparty: Incorporation of Charterparty Terms
		Incorporation in General
		Why Incorporate Time Charterparty Terms?
		Words of Incorporation
		Right to Sue and Lien for Time Charter Hire
		Liens on Sub-Freights
	C. Impact of the Carriage of Goods by Sea Act 1992 in this Area
		How does the Act Operate when the Contract “Springs Up”?
		Indorsement of Bill of Lading to Charterer
		Contracts (Rights of Third Parties) Act 1999
Chapter 10: Clauses Paramount in Time Charters
	Introduction
	Are the Rules Incorporated into the Charterparty?
	Which Rules are Incorporated?
	What is the Impact of the Rules Incorporated into the Charterparty?
		(i) The Seaworthiness Obligation
		(ii) Care of Cargo
		(iii) The Exceptions
		(iv) The Time Bar
		(v) Deviation
		(vi) Article IV rule 6 – Dangerous Goods
	Conclusion
Chapter 11: War, Terror, Piracy and Frustration in a Time Charter Context
	Introduction
	The Development of War Risks Cover
	Judicial Definitions of War and War Related Risks
	Terrorism and Piracy – Differences of Definition
	Changed Threats and New Risks
	“War Risks” in a Time Charter Context
	The Impact of International Regulation
	The Regulatory Framework, Port Safety, Employment and Indemnity
	“War Risks” Clauses
		Cancellation
		Alternative Methods of Performance
		Compliance with Third Part Instructions
		Mutual Exceptions Clauses
	War, Related Risks and the Doctrine of Frustration
	Conclusion
Chapter 12: Termination of Rights Under Time Charters
	Introduction
	Cancelling Clauses
		What Rights and Obligations Do Cancelling Clauses Create?
		When must the Option to Cancel be Exercised?
	Termination by Reason of a Ship’s Condition
		When is a Ship “Ready” to Tender a Valid Notice of Readiness?
		Termination of a Time Charter for Unseaworthiness
	Termination by Reason of Frustration of the Charter
	Termination of Time Charters for Late Payment of Charter Hire
Chapter 13: The Allocation of Cargo Claims Between Owners and Charterers in NYPE Charterparties
	Introduction
	Cargo Claims and Clause 8 of NYPE 1946 Charterparties
		Cargo Claims Arising out of Improper Cargo Handling
		Cargo Claims Arising out of Unseaworthiness Caused by Improper Cargo Loading or Stowage
	The Inter-Club Agreement 1996
		The Background
		The Legal Nature of the ICA 1996
		Types of Cargo Claim Covered by ICA 1996
		Preconditions for the Application of ICA 1996
		The Rules on the Apportionment of Cargo Claims
	Conclusions
Chapter 14: Containerisation, Slot Charters, and The Law
	Introduction: Why Slot Charters?
	What Type of Charter is a Slot
		(1) Duration
		(2) Control
		(3) Mode of Payment
		(4) Responsibility to Cargo Owners
	The Contractual Relationships Involved
		(1) Owner and Slot Charterers A, B and C
		(2) Owner and Bill of Lading Holder
		(3) Slot Charterer and Bill of Lading Holder
		(1) The Relationship Between the Slot Charterers Themselves
		(2) The Relationship Between the Bill of Lading Holder and Slot Charterers Other than the Charterer with Whom that Bill of Lading Holder has a Contract
	The Approach of the English Courts
		Slot Charters and Arrest
		Slot Charters and Limitation
	Conclusion
Chapter 15: Damages for Breach of Time Charter: Some Recent Developments
	Introduction
	General Principles of Damages
	Damages for Loss of Fixture: The Achilleas
	The Time for Assessment of Damages: The Golden Victory
	Conclusion
	Afterword
Chapter 16: The Effectiveness of Liens as a Self-Help Remedy?
	Introduction
	What is a Lien?
		Legal Difficulties
			(i) The Necessity for the Goods Owner to have Agreed to the Lien
			(ii) Incorporation of the Time Charter Lien Clause into the Bill of Lading
			(iii) The Significance of the Lien Between the Shipowner and the Time Charterer Inter Se
			(iv) Indirect Enforcement of Sums Due Under the Time Charter by the Exercise of a Lien on Freight
			(v) For What Amounts can the Lien be Exercised?
		Practical Difficulties
	Liens on Sub-freights
		Legal and Practical Difficulties
	Conclusion
Appendix 1: BALTIME 1939 (AS REVISED 2001)
Appendix 2: NYPE 1946
Appendix 3: NYPE 1993
Appendix 4: GENTIME
Appendix 5: BPTIME 3
Appendix 6: SHELLTIME 4
Appendix 7: STB TIME
Appendix 8: SLOTHIRE
Index