Voyage Charters

Widely regarded as the leading authority on voyage charters, this book is the most comprehensive and intellectually-rigorous analysis of the area, is regularly cited in court and by arbitrators, and is the go-to guide for drafting and disputing charterparty contracts. Voyage Charters provides the reader with a clause-by-clause analysis of the two major charterparty forms: the Gencon standard charterparty contract and the Asbatankvoy form. It also delivers thorough treatment of COGSA and the Hague and Hague-Visby Rules, a comparative analysis of English and United States law, and a detailed section on arbitration awards. This book is an indispensable, practical guide for both contentious and non-contentious shipping law practitioners, and postgraduate students studying this area of law.

SECTION I: GENERAL PRINCIPLES AND GENCON CHARTER Chapter 1: Formation and Terms of the Charter FORMATION OF THE CHARTER Types of charter CONCLUDING A BINDING AGREEMENT Matters which must be agreed if the contract is not to be unworkable or void for uncertainty The parties’ intention to contract "Subject to contract" "Subject to details" and similar expressions "Subject to logical amendments/alterations" "Subject to survey" "Subject to stem" "Subject to satisfactory completion of two trial voyages" "Fixed in good faith" Other "subjects" LAW GOVERNING THE CHARTER Governing law chosen by the parties 1. Express choice of governing law "Floating governing law clauses" 2. Choice of law "clearly demonstrated by the terms of the contract or the circumstances of the case" (a) Use of a standard form known to be governed by a particular system of law (b) Course of dealing between the same parties (c) Express choice of forum (d) Reference to certain provisions of a system of law, without an express general choice of that law Other indications of a choice of law Where the parties have made no choice of governing law The role of the governing law Procedural law – limitation of shipowners’ liability ILLEGALITY OF THE CONTRACT OF AFFREIGHTMENT MISTAKE 1. Mistake as to underlying circumstances 2. Mistake as to the parties, subject matter or other terms Parties Subject matter Terms of the contract Rectification MISPREPRESENTATION Revision for misrepresentation Damages for misrepresentation Representation – a term of the contract OTHER VITIATING FACTORS: DURESS AND BRIBERY Duress and the conflict of laws THE TERMS OF THE CHARTER Express terms Interpretation of charterparty terms The general principle of interpretation Circumstances in which external evidence is admissible as an aid of interpretation Other more specific guidelines for interpretation Implied terms Implied obligations of the owner Implied obligations of the charterer Classification of terms 1. Conditions 2. Warranty 3. Intermediate term Affirmation Bringing the charter to an end Performance Agreement Accepted repudiation Provision in the charter Frustration Chapter 2: Parties to the Charter 1. The basic rule: the identity of the parties depends on construction of the charter as a whole Misnomer Principal and agent Decisions on construction 2. Real principal can sue and be sued When the terms of contract exclude intervention of another person as principal When the agent is the real principal Election to sue agent or principal 3. Authority of agents Actual authority Ostensible authority Ratification Warranty of authority Mortgagees and purchasers The effect of the charter on non-parties "Piercing the corporate veil" 1. Liability as a party to the charter 2. Other cases U.S. Law Parties Identification of owner or charterer "Piercing corporate veils" Piercing the corporate veil in arbitration Piercing corporate veils in tort cases Parties in interest Consolidation in arbitration Participation of non-signatories in arbitration Consolidated class actions in arbitration Chapter 3: Description of the Ship Contractual effect of descriptive statements Condition, warranty or intermediate term When the ship must comply Name of the vessel Vessel "to be nominated" Liberty to substitute Chartered tonnage Owners’ right of transshipment Registered tonnage Deadweight and bale capacity "About" Classification Oil major approvals and RightShip status Flag and nationality Condition of the vessel and her gear Speed Vessel’s description in shipping register "Without guarantee" U.S. Law Description of the ship Vessel’s name Gross and net registered tonnage (GRT/NRT) Cargo carrying capacity Vessel’s flag Classification Society Length Arrival draft "Air draft" "WLTHC" "Under keel clearance" ("UKC") Present condition of tanks/holds Shovel clean Whether description of cranes implies they can work simultaneously Suitable for grab discharge "Self-discharging" Sugar charters: non-compliance clauses Chapter 4: Proceeding to the Loading Port Introduction 1. The position of the vessel at the date of the charter Statements as to the time when the vessel is to sail for the loading port 2. "Expected ready to load" Reasonable grounds "About" 3. The obligation to proceed to the loading port The effect of an "expected ready to load" date or other charter indicia Intermediate engagements Conditions or intermediate term? The effect of excepted perils When and where does the approach voyage begin? 4. Post-fixture notices of expected time of arrival GENCNO 1994 U.S. Law Present position of vessel and expected readiness to load "Expected Ready to Load (abt.)" Proceeding to the loading port Economic and Trade Sanctions The ALKIMOS and US Sanctions Against Venezuela Owner’s Demand for Alternative Voyage Orders The Parties’ Contentions Chapter 5: Loading and Discharging Ports, Places and Berths "Port or place" The identification and nomination of the port, place and berth Delegation of nomination Nomination under a bill of lading The obligation to nominate By whom the nomination may be made When the nomination must be made How the nomination is made Order of call at two or more ports The irrevocable effect of a valid nomination Impossibility Existing impossibility at the time of the nomination Supervening impossibility SAFETY The warranty of safety – express and implied 1. Named ports or places 2. Choice from a range of named ports/places 3. Choice from a number of unnamed ports within a range 4. Choice of a berth within a port Due diligence Can the warranty of safety be qualified by the context/circumstances? At what time does the charterer’s warranty as to safety operate? Re-nomination after supervening unsafety Definition of safety Types of unsafety Physical safety "Political" or non-seafaring unsafety "Always lie safely afloat" "Always accessible" or "always available" or "reachable on arrival" The particular vessel The duration and ambit of the warranty of safety 1. "reach" Lightening and safety 2. "use" Interruptions in safe conditions for use Tug and shifting costs 3. "return" 4. Port/berth ceasing to be unsafe prior to the vessel’s arrival Temporary obstacles Abnormal occurrences Negligence on the part of the master or navigator "So near thereto as she may safely get" The effect on the implied warranty of safety The effect of the term Notice The effects of the nomination of an unsafe or impossible port or place: the owner’s rights The right to consider the order The right to reject the order Loss of the right to reject and damages Damages for delay Chapter 6: The Cargo Obligations: mutual and prior to loading Meaning of a "full and complete" cargo Only ordinary cargo spaces to be used Ballast Stowage and broken stowage Preparation of the goods for loading "not exceeding what she can reasonable stow and carry" Bunkers, water and stores Draft restrictions, harbours with bars Effect of clauses describing the capacity of the vessel Effect of clauses describing the stowage factor of cargo Clauses fixing the amount of cargo to be shipped Maximum and minimum quantities fixed by the charter Options as to quantity to be loaded Charterparty for "a cargo" Port Cargo De minimis DECK CARGO When carriage of deck cargo is permissible 1. Where the contract of carriage provides for carriage on deck 2. Custom of the trade 3. Where the ship is specially designed for carriage on deck 4. Containers Rights and responsibilities where goods are carried on deck Unauthorised deck carriage Authorised deck carriage 1. Standard of stowage and seaworthiness appropriate to deck cargo 2. Where goods are carried "at charterer’s risk" or "at shipper’s risk" 3. Application of the Hague and Hague-Visby Rules 4. General average Owner’s right to freight where goods are carried on deck THE TYPE OF CARGO Cargo described specifically Cargo not described specifically – "lawful merchandise" DANGEROUS CARGO Express prohibition Implied term relating to dangerous cargo The meaning of "dan

TIMOTHY YOUNG Gray’s Inn, One of Her Majesty’s Counsel MICHAEL ASHCROFT Gray’s Inn, One of Her Majesty’s Counsel JULIAN COOKE Lincoln’s Inn, Barrister ANDREW TAYLOR London Solicitor, Reed Smith Professor JOHN D. KIMBALL Partner in Blank Rome LLP; Adjunct Professor at New York University Law School LEROY LAMBERT New York Arbitrator and Mediator DAVID W. MARTOWSKI Arbitrator and Mediator; Former President of the Society of Maritime Arbitrators and currently serves on its Board of Governors MICHAEL F. STURLEY Professor, University of Texas at Austin