《CARVER'S CARRIAGE BY SEA VOLUME 1》

Part OneTHE CONTRACT1

1. COMMON LAW LIABILITY1

1. Basic Liability1

Scope of chapter1

Public carriers2

Common carriers4

Ship employed by one freighter5

Passenger—luggage8

2. Exceptions9

"Act of God"9

"King's enemies"14

Inherent vice15

Defective packing17

Jettison18

When exceptions do not apply19

3. Summary of Common Law Rules20

Maritime rules20

Other bailments21

2. EMPLOYMENT OF THE SHIP25

1. Part Owners25

Modes of employing ships25

Liability of part owners26

Managing owner or ship's husband28

Security for part owner not interested in voyage31

2. Ship Subject to Charterparty32

Not to be employed inconsistently with charter32

Charter made after mortgage36

Charter made before mortgage39

3. The Master40

Authority to contract for owners40

Master's liability45

Vessel worked for joint benefit of master and owner47

Master not bailee of ship48

3. CARRIAGE IN A GENERAL SHIP49

1. Engagements for Carriage in a General Ship49

General position49

General freight agreements51

Liability of forwarding agents52

Terms of contract where no bill of lading53

Issue of bill of lading54

To whom the bill of lading is to be given58

With whom the contract is made60

2. Bill of Lading as a Contract84

Whether a bill of lading is the contract of carriage84

Bills of Lading Act 185590

3. Bill of Lading as Receipt102

(ⅰ) As to quantity102

(ⅱ) As to marks or quality108

(ⅲ) As to condition110

Statements in mate's receipt119

4. RESPONSIBILITY FOR CARGO120

1. Liability in Tort120

Historical introduction120

Law in 1909121

Negligence122

Conversion129

Who may sue in tort130

2. Liability in Contract131

Contract is to deliver safely131

Excepted perils subject to overriding obligations134

3. Sea worthiness140

Implied undertaking of seaworthiness140

Effect of unseaworthiness141

Absolute obligation145

United States cases146

Meaning of seaworthiness147

Ship must be seaworthy on sailing153

Voyages in stages154

Evidence of unseaworthiness158

4. Clauses Excepting Unseaworthiness159

Unseaworthiness excepted only by clear words159

Ineffective words160

Effective exceptions: "latent defect"162

Contract to be construed as a whole163

Clauses limiting extent of liability165

5. Negligence168

Implied undertaking of reasonable care168

Effect of negligence169

Care of cargo170

Clauses excepting negligence172

"Merchant's risk"177

"Negligence in navigation or management of ship"187

6. Excepted Perils196

1. General exceptions196

Onus of proof196

"Perils of the sea";209

"Act of God and King's enemies"224

"Restraints of princes"225

"Fire"232

Other specific perils233

2. Limitation clauses248

Quantum of liability248

Clause limiting time for claim248

7. Fundamental Breach253

1. Nature253

Introduction253

Suisse Atlantique257

"Fundamental breach": Suisse meanings264

2. Species of fundamental breach267

Genesis267

Anticipatory breach268

Total misperformance275

3. Tort as a fundamental breach294

Conversion294

4. Exclusion of exceptions297

(ⅰ) General297

Overriding obligations298

"Four corners" rule299

(ⅱ) Exclusion of exceptions by fundamental breach306

5. Election and exceptions312

Where fundamental breach is cause of loss312

Where fundamental breach does not cause loss318

Exemption from election321

Effect of rescission322

Effect of frustration323

6. Onus of proof326

Diverse lines of authority326

The Constantine rule327

Fur coat rule329

8. Benefits for Third Party333

1. General principles333

(ⅰ) Fundamental principles: general334

(ⅱ) Jus tertii342

2. Exceptions clauses370

Introduction370

New "fundamental principle"371

Exceptions to pseudo principle374

(ⅰ) Agency: general375

(ⅱ) Agency: Himalaya Clause382

3. The true principle398

Summary of change in last century398

What principle was adopted?407

Importance of Himalaya Clause410

International conventions411

9. Responsibility before Loading416

Commencement of shipowner's responsibility416

Operation of exceptions before loading417

10. Through Bills of Lading418

Liability of carriers in contract418

Liability in tort420

Obligations as bailee422

Condition of goods on transfer423

11. Merchant Shipping Act 1894, ss. 502 and 503424

Statutory exceptions: fire and theft: section 502424

Limitation of liability: section 503425

Limitation of liability: Act of 1970426

Whether section 502 replaced427

Right to limit by Convention of 1976428

Limits of liability: need for change429

Monetary bank measure of limits429

Conversion of special drawing rights into sterling429

Limits of liability: Convention of 1976430

Limitation fund431

Scope of application of Convention and Act432

Contracting out433

Conduct barring limitation: Convention of 1976435

Compulsory pilotage439

12. Carriage of Goods by Sea Act 1971441

1. Act of 1971441

A. The American lead443

B. The "model" bills of lading443

C. Imperial influence443

D. Passing of the Act443

History until 1979445

(a) Gold Clause agreement446

(b) Amended Hague Rules447

(c) Hamburg Rules of 1978449

Scheme of reform450

Scheme of Act of 1971450

Limited influence of new Rules451

Scheme of amendment of Rules451

The Muncaster Castle452

Scheme of the Act454

"Loss or damage"456

Construction of the Acts463

Construction of Act of 1971466

Contracts to which the Rules apply470

Incorporation of Rules by contract472

2. Commentary on the Act483

(1) Act of 1971484

(2) Amended Rules493

3. International aspect of Hague Rules571

Countries which have adopted the original rules571

International effect of municipal legislation572

5. CONTRACTS BY CHARTERPARTY582

1. Charters by Demise582

Effect of charter by demise582

Test for charter by demise585

Terms of charter by demise588

2. Other Classes of Charter: Form and Stamp589

Classes of charterparties which are contracts of carriage589

Stamp592

3. Agents593

Shipbroker's commission593

Consignment of ship to charterer's agents597

Agent's authority to conclude charter600

Rights and liabilities of undisclosed principal602

Liability of agent signing charter603

Berthnotes606

Custom to make agent liable607

Principal cannot be sued after judgment against agent608

Bunkers and Maintenance609

4. Representations in Charterparties611

Effect of representations611

Representations regarding ship614

Statement of ship's position622

5. Liability under a Charterparty: Exceptions627

Shipowner's undertaking in voyage charter627

When the exception clause applies628

Perils mutually excepted630

Baltic exceptions clauses632

6. Time Charters636

Shipowner retains possession of vessel636

Duration: delivery of vessel637

Duration: term of charter638

Duration: completion of voyage: (1) implied extension643

completion of voyage: (2) express extension650

Options to vary duration651

Duration measured by voyage653

Mixed time and voyage charters: round voyage654

Substitution of vessel665

Shipowner's responsibility for navigation666

Shipowner's responsibility for cargo667

Employment and indemnity clause668

Unsafe ports and berths671

Trading limits682

Charterer's order amounting to repudiation of charter684

Repudiation of charter by shipowner687

War clauses688

Space at charterer's disposal692

Maintenance of ship in efficient condition693

Insurance694

Charterer's disbursements696

Redelivery in good order and condition697

Time freights or hire698

6. BILLS OF LADING FOR GOODS IN CHARTERED SHIP699

1. Bills of Lading given to Charterer699

In hands of charterer699

In hands of transferee702

2. Bills of Lading given to Other Shippers704

With whom the shipper contracts704

Contract with charterer: ship's liability in tort717

3. "Other Conditions as per Charterparty"720

General effect of provision720

Excepted perils not imported721

Other clauses722

Invalid or amended charterparty726

Wider words of incorporation727

4. "Master to Sign Bills of Lading as Required"729

Master's authority to give bill of lading729

General effect of clause730

Indemnity by charterer737

Two charterparties740

7. FRUSTRATION AND ILLEGALITY745

1. Origin of Doctrine of Frustration745

Principles from which the doctrine derived745

Frustration of voyage before loading747

Frustration after loading750

2. Nature of Frustration751

Basis of doctrine751

Test of frustration755

Frustration by delay759

Frustration of time charter761

Whether frustration is a question of fact or law763

Exclusion of doctrine by contract: suspension clauses765

Self-induced frustration768

Frustration of charter for several voyages771

Frustration of long-term freight contracts772

Frustration of bills of lading773

C.I.F. contracts774

3. Effect of Frustration775

Effect automatic775

Effect of frustration on arbitration clause776

Whether money paid under contract is recoverable after frustration778

Law Reform (Frustrated Contracts) Act 1943781

4. Illegality783

Species of illegality783

Illegal object784

Contract prohibited by statute786

Unlawful performance788

Ex turpi causa non oritur actio794

Effect of supervening illegality796

Contract capable of legal performance valid798

Temporary restraint of voyage800

5. Dissolution of Contract by War802

Trading with the enemy802

Contraband and blockade807

6. Express Provision for Cancellation of Charter810

7. Public policy817

Introduction817

Application of doctrine to marine traffic822

United States and other doctrines827

Positive application of doctrine to sea carriage829

Ephemeral epitome830

Index to both volumes1

VOLUME TWO835

8. CONSTRUCTION OF THE CONTRACT: CUSTOMS OF TRADE835

1. Rules of Construction835

2. Conditions Precedent880

3. Implied Terms890

4. Customs of Trade905

9. EFFECT OF FOREIGN LAW940

1. Law Governing Contract940

2. Legality of Contracts978

Part TwoTHE VOYAGE1001

10. PROCEEDING TO PORT OF LOADING1001

1. When Ship Must Proceed1001

2. Where Ship Must Proceed to1010

11. LOADING1020

1. General1020

2. Charterer's Obligation to have Cargo Ready1026

3. Exceptions to Charterer's Obligations1035

4. Specific Exceptions1052

5. Completion of Loading1070

6. Cargo to be Loaded1072

7. Relanding Cargo1087

8. Ship's Obligation to Load1091

9. Stowage1094

10. Dangerous Cargo1107

11. Stowage on Deck1136

12. Statutes as to Stowage1142

12. PROCEEDING ON THE VOYAGE1160

1. Commencement of Voyage1160

2. Deviation and Delay1161

3. Master as Agent of Cargo-owner1225

4. Abandonment of Voyage: Transhipment1236

5. Bottomry1249

6. Order of Priority of Claims against a Ship1254

13. SALVAGE AND WRECK1270

1. Nature of Salvage1270

2. Who may be Salvors1298

3. Amount of Salvage1314

4. Contribution to Salvage1330

5. Wreck1335

14. GENERAL AVERAGE1345

1. Principle of General A verage1345

2. General Average Sacrifices1352

3. General A verage Expenditure1399

4. Port of Refuge Expenses1416

5. Contribution to Sacrifices1437

6. Contribution to Expenditure1454

7. Contributions to and from Freight1463

8. Remedies1475

Part ThreeTHE DELIVERY1500

15. DISCHARGE: WAREHOUSING1500

1. Port and Place of Discharge1500

2. Mode of Discharge1542

3. Warehousing1562

16. TO WHOM SHOULD DELIVERY BE MADE1591

1. Duty to Deliver to Right Person1591

2. Bill of Lading as Document of Title1596

3. Delivery of Mixed Goods1635

17. STOPPAGE IN TRANSIT1651

18. FREIGHT1661

1. When Payable1661

2. How Calculated and Paid1703

3. To Whom Payable1729

4. By Whom Payable1748

19. DEMURRAGE1811

1. General1811

2. Effect of Fixed Lay Time1821

3. Computation of Lay Time1839

4. Effect of Not Fixing Lay Time1876

5. When Lay Days Begin1888

6. When Charterer's Responsibility for Delay Ends1945

7. Dispatch Money1948

8. By Whom Demurrage is Payable1950

9. Cesser Clause1960

20. SHIPOWNER'S LIENS1991

1. Lien for Freight at Common Law1991

2. Express Liens2010

3. Operation of Charterparty Liens against Bill of Lading Holders2021

4. Preservation and Loss of Lien2033

Part FourREMEDIES2051

21. REMEDIES OF FREIGHTERS—IN REM AGAINST SHIP—AGAINST COLLIDING SHIPS2051

1. Admiralty Jurisdiction in respect of Carriage of2051

2. Losses of Goods by Collision2089

22. MEASURE OF DAMAGES2122

1. Rule in Hadley v. Baxendale2122

2. Foreign Currency and Law2149

3. Breach of Contract by Freighter2170

4. Breach of Contract by Shipowner2176

5. Damages Fixed by Contract2195

EPILOGUE2201