Discernment ocean bill of lading and transportation contract differences

The bill of lading issued under the lease contract clause determine when transportation

When a cargo transport involves two files, namely chartering contract and bill of lading, and they all look like the contract of carriage, the resulting problem is more complex. First look at bill of lading and chartering contract role.

In English law, the bill of lading has three functions, cargo receipt (return for goods provides other approach contract of transport shipped), evidence of the contrct proof of carriage) and property rights certificate (a document of title). "Maritime law" regulation: "a bill of lading, paragraph refers to the contract of carriage of goods by sea to proof by the carrier and the goods have been shipped takeover or, as well as the carrier undertakes to deliver the goods in the documents." According to this provision, the bill of lading has the following main role: (1) the contract of carriage of goods by sea proof; (2) carrier shall take the goods or goods shipment proof; (3) the carrier undertakes to deliver goods voucher.

We should analyse the research question, when the carrier face on the ship carrying about lessee of the goods, the claim claim shall be applicable bills of lading provisions or the lease terms? The parties will try to choose to oneself advantageous files. So, the carrier may have he likes because of the bill of lading the arbitration clause and hope to choose a bill of lading, may also be because there are more strict lease limitation to opt for the lease provisions. You will find it difficult to predict in each case which document suitable for which side, depending on the actual situation of each case and the litigation land.

The legal principle to solve the problem are as follows:

One, when the bill of lading, because when the charterer hands with the carrier of the charterer between transport contract is the agreement, so the bill of lading played only goods receipt and document of title role, and not as proof of the contract of carriage. At this moment, claim is applicable regulations, unless the lease terms leases the terms can be issued later change or replace the terms of the bill of lading. British case law also is same, whether the bill of lading is prescribed by the carrier or the shipper issued to the charterer transferred by endorsement, the charterer.

Second, when the bill of lading on the third party chartering contract when the hand of bill of lading will become the contract of carriage, the proof, claims will apply the bill of lading terms. "Maritime law" regulation: "according to where the voyage charter party bill of lading issued by the transport of goods, the holder of the bill of lading is not the lessee, the carrier and the holder of the bill of lading for the rights and duties in the relationship between bill of lading agreement." Britain has the same case law and regulations.

Third, if the bill of lading, the existing in according to merge into terms incorporated into to determine which the provisions of the bill of lading terms and the lease terms applicable. Our country on how to determine the lease maritime law not already incorporated into the bill of lading terms to make clear whether rules. Haikou maritime courts in a trial of bill of lading with damage compensation dispute case, in the arbitration clause to lease a verdict. Merged into In the case, the consignee (plaintiff) in short order to the carrier (defendant) for a lawsuit. The bill of lading shall merge into all of the terms "lease terms, conditions, free and exception as terms of bill of lading hereby incorporated into the back." The defendant to the lease terms incorporated into the bill of lading for carrying lasalle proposed jurisdiction. Haikou maritime court thinks, only in the bill of lading special mention will lease the merge into the arbitration clause in the bill of lading, the lease terms can effectively into the holder of the bill of lading bill of lading and constraints. In this case the bill of lading terms has failed to effectively will merge into the arbitration clause in the lease, the carrier of the merged into objects to the jurisdiction was proposed order rejection. Recently, a scholar on the analysis of problems related to merge into bill of lading terms, puts forward the same view with the verdict. He also pointed out that the carrier in the bill of lading, bill of lading book into a voyage charter party merged into terms, only for the lessor to its rights of a voyage charter party bill of lading, and shall have no right to merge into by other companies for the lessor's a voyage charter party bill of lading to constraints into the holder of the bill of lading. British case law, want to make the lease terms are effectively incorporated into the bill of lading, three conditions must be met. First, The bill of lading must have valid merges into The Varenna case terms (). If only clearly specified in the lease terms incorporated into the bill of lading, lease merge into is invalid. Because only the bill of lading is the carrier and the holder of the bill of lading contract between proof, lease terms are incorporated into the bill of lading is not likely to shipowners' and the lessee agreement between the to determine. Secondly, merges into terms must be clearly describe words to merge into lease terms. In Varenna's case, The phrase "all The disclaimer and lease conditions" was convicted of is not enough to include an arbitration clause, because The word according to The usual understand only expresses The transportation and delivery of The goods are conditions and disclaimer, not enough to expand to arbitration clause. In Miramar's case, The words "no matter what conditions", was convicted of can effectively will lease to literally merge into The bill of lading. But on some bills of lading in unusual terms is also incorporated into this question whether still have questions on. Finally, the lease terms must be incorporated into consistent with other bills of lading provisions. If there are conflicts, the bill of lading terms is preferred. In Hamilion v.M ackie's case, a regulation "the lease item shall be submitted to arbitration dispute under the terms of the" after being incorporated into the bill of lading bill of lading is not applicable to determine a dispute. In Miramar's case, because The charterer bankruptcy, The owners tried to recover The lease item under The holder of The bill of lading of demurrage. According to the provisions of the bill of lading lease terms incorporated into land by literally merge into indeed bill of lading, but the problem is this provision "charterer shall pay demurrage, the court refused to" terms of "charterer" and then "the holder of b/l". The judge believed, that leads to the holder of the bill of lading accept potential liability to pay that is entirely, or completely unpredictable, or already happened, or subsequent to happen and he doesn't have any responsibility but also cannot prevent, even amount exceeds the cost value, any merchants were not willing to conclude such a contract. This example sentence reflected some of the validity of the merged into terms of criticism, especially the holder of the bill of lading is to apply his simply don't know the provisions of the lease. In addition, when maritime cargo transport involves a series of to sublet