Voyage Charters

1464 Pages·2014·15.6 MB·English

by  Julian Cooke

VOYAGE
CHARTERS
LLOYD’S SHIPPING LAW LIBRARY
Series editors: Andrew W. Baker, QC and Hatty Sumption
LLOYD’S SHIPPING LAW LIBRARY
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VOYAGE
CHARTERS
BY
JULIAN COOKE JOHN D. KIMBALL
of Lincoln’s Inn, Barrister New York Attorney, Blank Rome LLP
TIMOTHY YOUNG DAVID MARTOWKSI
of Gray’s Inn, One of Her Majesty’s Counsel New York Arbitrator and Mediator
MICHAEL ASHCROFT LEROY LAMBERT
of Gray’s Inn, One of Her Majesty’s Counsel President Charles Taylor P&I Management
(Americas), Inc.
ANDREW TAYLOR MICHAEL STURLEY
London Solicitor, Reed Smith Professor, University of Texas at Austin
FOURTH EDITION
informa law
from Routledge
Fourth Edition published 2014
by Informa Law from Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Informa Law from Routledge
711 Third Avenue, New York, NY 10017
Informa Law from Routledge is an imprint of the Taylor & Francis Group, an Informa business
© Julian Cooke, Timothy Young, Michael Ashcroft, Andrew Taylor, John Kimball,
David Martowski, LeRoy Lambert, Michael Sturley 2014
The rights of Julian Cooke, Timothy Young, Michael Ashcroft, Andrew Taylor,
John Kimball, David Martowski, LeRoy Lambert and Michael Sturley to be identified as
the authors of this work has been asserted in accordance with sections 77 and 78
of the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or
utilised in any form or by any electronic, mechanical, or other means, now known or hereafter
invented, including photocopying and recording, or in any information storage or retrieval
system, without permission in writing from the publishers.
Trademark notice: Product or corporate names may be trademarks or registered trademarks, and
are used only for identification and explanation without intent to infringe.
Every attempt has been made to obtain permission to reproduce copyright material.
If any proper acknowledgement has not been made, we would invite copyright holders
to inform us of the oversight.
Whilst every effort has been made to trace copyright holders, this has not been possible in all
cases. Any omissions brought to our attention will be remedied in future editions.
Lloyd’s is the registered trade mark of the Society incorporated by the Lloyd’s Act 1871
by the name of Lloyd’s.
First edition published by Lloyd’s of London Press 1993
Third edition published by Informa in 2007
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
Cooke, J. H. S. (Julian Humphrey Spencer), author.
Voyage charters, fourth edition / Julian Cooke [and seven others]. — Fourth edition.
pages cm — (Lloyd’s shipping law library)
ISBN 978-0-415-83360-8 (hardback) — ISBN 978-1-315-79502-7 (ebook)
1. Charter-parties. 2. Voyage charters I. Title.
K1182.C66 2014
343.09’68—dc23
2013051111
ISBN 978-0-415-83360-8
eISBN 978-1-31579-502-7
Typeset in Times New Roman
by Florence Production Ltd, Stoodleigh, Devon, UK
Preface
Since the third edition, there have been no earth-shaking changes to the law relating to the carriage
of good by sea. The progress of the Rotterdam Rules has been slow and uncertain. Although
doubtless the fifth edition may have to devote much space to them, it has not been thought that
this edition need do so. There have been some important English decisions on demurrage (The
Archimidis, The Eternity, The Eagle Valencia and The Abqaiq), on the Hague Rules package
limitation (The Limnos) and on the Carriage of Goods by Sea Act 1992 (The Pace decisions),
but they have been largely discrete in their operation.
There has been a steady accretion of developments in the general law of contract, which
inevitably have an impact on carriage contracts. Scarcely a section on the general principles of
the law of contract in Chapter 1 (probably not a chapter much considered by practitioners) has
gone unaffected by change of some sort: the rules on determining the applicable law, duress,
illegality, mistake, repudiation, the implication of terms, and the general rules of contractual
interpretation and even good faith have all been subjected to judicial exegesis. The law of the
assessment of damages has likewise developed not, as many thought, by a drawing back from
The Golden Victory,but in quite the opposite direction, with wasted expenses loss now rationalised
in line with the “compensation principle” in The Mamola Challenger and as the “available
market” has become a less available tool with the post-Lehman crisis in the field of remoteness
with The Kildare. Remoteness has undergone perhaps a more short-lived tremor with The
Achilleas. The minimum performance principle may be ripe for substantial change after the
bmiBabycase.
But there have been enough changes to merit a fourth edition, changes all over the world. We
have tried to embrace decisions in major jurisdictions as well as those principally involved in
this book: the courts of Singapore, Australia, New Zealand, South Africa and Canada have all
contributed much useful learning. We can only regret that the references to such decisions are
less full than they really deserve, usually through practical difficulties of access in spite of the
Internet.
There is a not-dissimilar problem with English decisions. The growth of the unreported “neutral
citation” decisions has created its own minefield. Gone are the days when authors and practitioners
alike could keep up with change by reading their parts of Lloyd’s Law Reports and their less
frequent Lloyd’s Maritime and Law Quarterly. Now the dreaded neutral citation references
“EWCA Civ” or “EWHC Comm”, coming across the radar like stealth bombers, are enough to
strike dread in the hearts of many stalwart practitioners. We have done our best to incorporate
most of the relevant “neutral citation” cases. We here offer our particular thanks to the many
members of the Bench who have sent copies of their judgments; and, importantly, there are
significant decisions from the Construction and Technology Court as well as the Commercial
Court that receive some mention. The two streams of jurisprudence practised in the two courts
might merge to the benefit of each.
We thank Thomas Corby for his valuable research work in relation to developments in the
case law.
vii
PREFACE
We have continued the process of trying to eradicate persistent errors, and in this we give our
unqualified thanks to colleagues who have not been slow to render criticism, comment and
suggestion. Errors will assuredly have gone unspotted, but it is devoutly hoped that they are
reducing in number. We still assume full blame for their continued presence, and still welcome
contributions from users who find error or obscurity.
The process of authorship has undergone a more fundamental change than the law perhaps.
Michael Ashcroft, whose knowledge, insight and skill have been to the huge benefit of the book,
has joined to reinforce the English team, while the US team has also received their own boost
with the arrival of Michael Sturley and his unequalled contribution to the US law on the Carriage
of Goods by Sea Act 1936. It is hard to think of a greater authority on that topic than Michael,
and the authors on both sides of the Atlantic are delighted to have him on board.
But the last word should go to a celebration of the part that Julian Cooke has played in the
development of this book. Julian, so long the leading light of the English team and the man who,
in the view of all users, gave his name to Cooke on Voyage Charters, has begun the process of
retirement. He had hoped to escape the fourth edition altogether, especially with the arrival of
Michael Ashcroft, but it was not so easy to break free from the clutches of his fellow authors.
Without Julian this work would have been a weak shadow of what we hope it now is. It is hoped
that, when he does finally manage to extricate himself completely, the standards he set will persist.
Our thanks are also due to our families and the publishers, in particular Faye Mousley, for
the monumental patience they have shown in the face of continual missed deadlines, last-minute
alterations, and all the other impositions which have been inflicted upon them. The United States
team acknowledges with thanks the contributions of Kate Belmont and Michele Granito.
As ever, we gratefully thank the following organisations for their permission to reproduce,
and for assistance with the various forms and documentation used within this publication:
Association of Shipbrokers & Agents (U.S.A.) Inc., New York, United States; the Baltic and
International Maritime Council (BIMCO), Copenhagen, Denmark; and Genoc Chartering Limited,
London, United Kingdom.
Our intention has been to state the law as at 1 April 2014, although when the limits of editing
have allowed, we have tried to incorporate some references after that date.
viii
Contents
Page
Preface vii
Table of U.K., Commonwealth and European Cases xliii
Table of U.S. Cases xcviii
Table of Arbitrations cxii
Table of Legislation cxxiii
Table of Conventions and Rules cxxvii
Table of Charterparties and Standard Clauses cxxx
SECTION I. GENERAL PRINCIPLES AND GENCON CHARTER
para.
CHAPTER 1. FORMATION AND TERMS OF THE CHARTER 1.1
Formation of the charter 1.1
Types of charter 1.1
Concluding a binding agreement 1.3
Matters which must be agreed if the contract is not to be unworkable or void for
uncertainty 1.5
The parties’ intention to contract 1.12
“Subject to contract” 1.16
“Subject to details” and similar expressions 1.17
“Subject to logical amendments/alterations” 1.20
“Subject to survey” 1.21
“Subject to stem” 1.23
“Subject to satisfactory completion of two trial voyages” 1.24
“Fixed in good faith” 1.25
Other “subjects” 1.26
Law governing the charter 1.27
Governing law chosen by the parties 1.28
1. Express choice of governing law 1.30
“Floating” governing law clauses 1.31
2. Choice of law “clearly demonstrated by the terms of the contract or the circumstances
of the case” 1.33
(a) Use of a standard form known to be governed by a particular system of law 1.34
(b) Course of dealing between the same parties 1.35
(c) Express choice of forum 1.36
(d) Reference to certain provisions of a system of law, without an express general
choice of the law 1.37
Other indications of a choice of law 1.38
Where the parties have made no choice of governing law 1.39
The role of the governing law 1.47
Procedural law—limitation of shipowners’ liability 1.50
Illegality of the contract of affreightment 1.51
Mistake 1.64
1. Mistake as to underlying circumstances 1.65
2. Mistake as to the parties, subject matter or other terms 1.67
ix