SHIPPING LAW FOURTH EDITIONPDF电子书下载

PART Ⅰ DRY SHIPPING 1

1 THE COMMERCIAL BACKGROUND 3

INTERNATIONAL SALES OF GOODS 3

Payment against documents 3

Transfer of risk on loading 4

THE FOUR FUNCTIONS OF THE BILL OF LADING 5

Receipt 5

Document transferring constructive possession 6

Document of title 7

A potentially transferable carriage contract 8

CONTRACTS OF CARRIAGE 8

The bill of lading 8

The voyage charterparry 9

Contracts for the use of the vessel-time charters 10

MODIFICATIONS TO THE TRADITIONAL CARRIAGE CONTRACT MODEL 10

Use of documents other than the bill of lading 11

Implied contracts 12

Expansion of the contractual service from pure sea carriage 13

Containerisation 14

THE CARGO CLAIM ENQUIRY 15

Does the claimant have title to sue the defendant? 15

If the claimant does have title to sue,can it bring an action against the defendant in the English courts? 16

Has the loss or damage occurred during the period for which the carrier was responsible for the goods? 17

If loss is established during the relevant period,what is the defendant's responsibility for it? 17

If the defendant is responsible for the loss,how will damages be assessed? 17

2 TITLE TO SUE 18

EXPRESS CONTRACTS ON LOADING 18

The voyage charterparty 19

The bill of lading 21

Sea waybills 23

Straight bills 24

Electronic documentation 25

IMPLIED CONTRACTS ON LOADING 27

Shipowner's bill or charterer's bill? 30

Identity of carrier clauses 32

Shipowner's position when a charterer's bill is issued 34

THIRD-PARTY RIGHTS UNDER THE INITIAL CARRIAGE CONTRACT AT COMMON LAW AND IN EQUITY 35

Agency 36

The Contracts(Rights of Third Parties)Act 1999 37

Trust 38

Suit by the shipper 38

Assignment 39

Implied contract 39

STATUTORY TRANSFER-THE BILLS OF LADING ACT 1855 AND THE CARRIAGE OF GOODS BY SEA ACT 1992 40

The 'old' regime-the Bills of Lading Act 1855 40

The 'new' regime-the Carriage of Goods by Sea Act 1992 41

Claimants outside the Carriage of Goods by Sea Act 1992 49

NON-CONTRACTUAL ACTIONS 50

Bailment 50

Negligence 54

Other torts 63

3 PROVING LOSS OR DAMAGE IN TRANSIT 66

THE EVIDENTIAL HIERARCHY OF BILL OF LADING STATEMENTS 68

BILL OF LADING STATEMENTS AND CONTRACTUAL ACTIONS AGAINST THE CARRIER 69

The common law position 69

Statutory modifications under the Hague and Hague-Visby Rules 73

TORT ACTIONS AGAINST THE CARRIER 77

Vicarious liability and Grant v Norway 78

ACTIONS AGAINST THE PERSON WHO ACTUALLY SIGNED THE BILL OF LADING 79

4 THE TERMS OF THE BILL OF LADING CONTRACT 81

COMMON LAW LIABILITY OF SEA CARRIERS 81

Exceptions clauses and implied obligations 82

EXPRESS TERMS 84

The effect of general incorporation clauses 84

Construing a charter clause in a bill of lading context 85

Construing exceptions clauses 86

IMPLIED TERMS 88

Seaworthiness 88

The obligation to take reasonable care of the cargo 97

The obligation to proceed on the contract voyage without deviating 98

5 STATUTORY TERMS OF THE BILL OF LADING CONTRACT 103

THE HAGUE AND HAGUE-VISBY RULES 103

THE AMBIT OF THE RULES 103

Mandatory application 104

Voluntary incorporation 111

Contracting out 112

Third-party reliance on the Rules 118

THE CONTENT OF THE RULES 119

The carrier's duties under Art Ⅲ 119

The carrier's defences under Art Ⅳ 124

The one-year time limit-Art Ⅲ(6)and(6)bis 130

The package limitation 134

Containers 135

Loss of the right to limit 139

Shipper's liability under the Rules 140

6 THE FUTURE? THE HAMBURG RULES AND THE ROTTERDAM RULES 143

THE HAMBURG RULES 143

Ambit of operation 144

Who is liable? 144

Period of responsibility 145

Basis of liability 146

Deck cargo 147

Package limitation 147

Time bar 148

Bar on contracting out 148

Jurisdiction 148

Evidential status of shipping documents 149

THE ROTTERDAM RULES 150

Chapter One-general provisions 151

Chapter Two-scope of application 154

Chapter Three-electronic communication 155

Chapter Four-obligations of the carrier 155

Chapter Five-liability of the carrier for loss,damage,or delay 156

Chapter Seven-obligations of the shipper 161

Chapter Eight-transport documents and electronic transport records 163

Chapter Nine-delivery of the goods 167

Chapter Ten-rights of the controlling party 169

Chapter Eleven-transfer of rights 171

Chapter Twelve-limits of liability 173

Chapter Thirteen-time for suit 173

Chapter Fourteen-jurisdiction 174

Chapter Fifteen-arbitration 175

Chapter Sixteen-validity of contractual terms 176

Chapter Seventeen-matters not covered by this Convention 177

Chapter Eighteen-final clauses 178

7 COMBINED TRANSPORT 179

UNIMODAL SEA CARRIAGE 179

'Received for shipment' bills of lading 179

Trans-shipment-'through' bills of lading 180

'COMBPNED' OR 'MULTIMODAL' TRANSPORT 181

Document of title? 181

Competing conventions 183

'Network' and 'uniform' solutions 183

The 1980 Multimodal Convention 184

8 CARRIAGE BY ROAD-CMR 186

MANDATORY APPLICATION OF THE CMR 186

THE IDENTITY OF THE CONTRACTING PARTIES 188

The sender 188

The consignee 188

The carrier 188

Successive carriers 189

THE CONTRACT DOCUMENTS 190

Information to be included in the consignment note 190

Carrier's duty to check particulars in consignment note 191

Contractual status of consignment note 191

Non-compliance with Arts 6-9 191

TERMS OF THE CONTRACT 192

Contracting out 192

The primary defences 194

The secondary defences 195

MEASURE OF DAMAGES 197

Package limitation 197

JURISDICTION AND TIME LIMITS 198

9 CHARTERPARTIES 200

INTRODUCTION 200

THE TYPES OF CHARTER 200

Voyage charters 200

Time charters 201

Hybrids-the 'trip charter' 202

The interest conferred by a charterparty 202

Matters common to both types of charter 202

CHARTERERS' ORDERS 203

Employment,as opposed to navigational,matters 204

Causation 205

Relationship with other charter provisions 205

The bill of lading 206

Type of cargo to be loaded 215

Permitted ports 215

SHIPOWNERS' OBLIGATIONS IN GETTING TO THE LOAD PORT 221

Reasonable dispatch 221

Statements as to vessel's position and expected readiness 221

The cancellation clause 223

10 VOYAGE CHARTERPARTIES-PAYMENT OF FREIGHT 225

WHAT IS FREIGHT? 225

Set-off 225

WHEN AND WHERE IS IT PAYABLE? 226

SPECIAL CLAUSES 227

The 'deemed earned' clause 228

The 'near' clause 228

BY WHOM IS IT PAYABLE? 229

REMEDIES FOR NON-PAYMENT 232

The nature of a lien 232

Exercising a lien 233

11 VOYAGE CHARTERS-LAYTIME AND DEMURRAGE 236

CALCULATING THE AVAILABLE LAYTIME 237

WHEN IS CHARTERER'S DUTY TO LOAD OR DISCHARGE TRIGGERED? 238

Giving notice of readiness 239

The termination point of the approach and carrying voyages 241

'Wibon' and 'time lost' clauses 244

Reachable on arrival 244

SUSPENDING LAYTIME-LAYTIME EXCEPTIONS 246

Construing exceptions clauses 246

Port charter exceptions while waiting for berth 248

Fault of the shipowner 248

THE SHIPOWNER'S REMEDIES FOR DELAYS IN LOADING AND DISCHARGE-DEMURRAGE 249

Laytime exceptions and demurrage 251

Demurrage and other breaches of charter 252

12 TIME CHARTERS 254

THE SHIPOWNER'S RIGHT OF WHHDRAWAL 254

Late payment 255

Underpayment-charterers' rights to make an 'equitable' set-off 256

LOSS OF TIME UNDER A TIME CHARTER-'OFF-HIRE' 258

Inefficiency of the vessel 258

Off-hire events 259

Time deductible following an off-hire event 260

Other remedies for delay 262

REDELIVERY 263

13 DAMAGES AND FRUSTRATION 265

DAMAGES 265

Tort and contract compared 265

Contractual measure of damages 266

Applying the contractual rules on remoteness to cargo claims 266

Charterparty claims and damages 270

FRUSTRATION 272

What amounts to frustration? 272

The effect of breach 274

The consequences of frustration 274

PART Ⅱ WET SHIPPING 277

14 COLLISIONS 279

VICARIOUS LIABILITY 279

Tugs and tows 280

Pilots 281

STANDARD OF CARE 281

CAUSATION 284

APPORTIONMENT OF LIABILITY 285

DAMAGES 287

STATUTORY LIABILITY 289

TIME BAR 290

JURISDICTION 290

15 SALVAGE 292

THE SOURCES OF SALVAGE LAW 292

WHAT PROPERTY CAN BE SALVED? 294

Maritime property 294

The requirement of danger 296

WHAT ARE THE GEOGRAPHICAL LIMITS OF SALVAGE? 298

WHO CAN BE A SALVOR? 298

Contractual duties 299

Public duties 300

Self-interest 301

WHAT SERVICES QUALIFY FOR SALVAGE? 302

The general rule of 'no cure,no pay' 302

Oil pollution 304

The SCOPIC clause 307

WHAT PRINCIPLES GOVERN THE RELATIONSHIP BETWEEN SALVOR AND SALVEE? 308

The parties bound by the signing of a salvage agreement 309

Setting aside a salvage agreement 310

The effect of negligence 311

Termination of the salvage services 313

Post-termination services 315

HOW IS ANY SALVAGE AWARD CALCULATED? 315

Salved values 315

Fixing the award 319

Apportioning the award between salvors 320

WHAT REMEDIES ARE AVAILABLE TO SALVORS? 321

Security for the claim 321

Time bar 322

HOW DO SALVAGE PRINCIPLES APPLY TO WRECK? 322

Statutory powers of wreck removal 323

THE 2007 NAIROBI INTERNATIONAL CONVENTION ON THE REMOVAL OF WRECKS 323

16 GENERAL AVERAGE 325

EXTRAORDINARY SACRIFICES AND EXPENSES 326

Sacrifices 326

Expenses 328

VOLUNTARINESS 332

TIME OF PERIL 332

COMMON SAFETY 333

FAULT 333

VALUING LOSSES AND ASSESSING CONTRIBUTORY VALUES 334

Sacrifices 334

Expenditure 335

Contributory values 335

RIGHTS AND REMEDIES OF THE INTERESTS INTER SE 336

THE YORK ANTWERP RULES 2004 337

17 MARINE POLLUTION 339

THE CLC 339

Strict liability 340

Geographical ambit 342

Defences 342

'Channelling' of liability 343

Limitation of liability 343

Compulsory insurance 344

Time limits 345

Jurisdiction 345

THE FUND 345

The Fund's liability 346

Defences available to the Fund 346

Limitation 347

Time limits 347

Subrogation 347

Jurisdiction 348

NON-TANKER OIL SPILLS 348

The 2001 Bunker Oil Pollution Convention 348

HAZARDOUS AND NOXIOUS SUBSTANCES(HNS)POLLUTION 349

Liability 350

Geographical ambit 350

Shipowners' defences 351

Limitation 351

Compulsory liability insurance 352

Jurisdiction 352

Time bars 352

The HNS Fund 353

The Protocol to the HNS Fund 353

PART Ⅲ JURISDICTION,CHOICE OF LAW,SECURITY AND LIMITATION 355

18 JURISDICTION AND APPLICABLE LAW 357

JURISDICTION OF THE ENGLISH HIGH COURT 357

Jurisdiction under the Judgments Regulation(EC 44/2001) 358

Domestic sources of jurisdiction 369

SUBSEQUENT CHALLENGE TO JURISDICTION BY THE DEFENDANT 385

Articles 27 and 28 of the Judgments Regulation-lis alibi pendens 386

Stays and arbitration proceedings 398

Section 34 of the Civil Jurisdiction and Judgments Act 1982 398

APPLICABLE LAW 399

Contract 399

Tort 404

19 SECURITY AND INTERIM RELIEF 407

ARREST 407

Priorities 409

Effect of a stay on provision of security 410

THE FREEZING ORDER 412

The elements of a domestic freezing order 413

'Worldwide' freezing orders 416

OTHER INTERIM RELIEF 418

Security for the defendant's costs 418

Inspection of property 418

Anti-suit injunctions 419

20 LIMITATION OF LIABILITY 422

WHO CAN LIMIT? 422

WHICH CLAIMS ARE SUBJECT TO LIMITATION? 423

WHICH CLAIMS ARE NOT SUBJECT TO LIMITATION? 424

HOW CAN THE RIGHT TO LIMIT BE LOST? 425

HOW IS THE LIMITATION FIGURE CALCULATED? 426

Fund A-claims arising out of death and personal injury 426

Fund B-all other claims 427

The 1996 Protocols 427

Fund A-claims arising out of death and personal injury 428

Fund B-all other claims 428

JURISDICTION 428

OTHER LIMITATION REGIMES 430

Index 431