《CARVER'S CARRIAGE BY SEA VOLUME 2》

Part OneTHE CONTRACT1

1. COMMON LAW LIABILITY1

1. Basic Liability1

2. Exceptions9

3. Summary of Common Law Rules20

2. EMPLOYMENT OF THE SHIP25

1. Part Owners25

2. Ship subject to Charterparty32

3. The Master40

3. CARRIAGE IN A GENERAL SHIP49

1. Engagements for Carriage in a General Ship49

2. Bill of Lading as a Contract84

3. Bill of Lading as Receipt102

4. RESPONSIBILITY FOR CARGO120

1. Liability in Tort120

2. Liability in Contract131

3. Seaworthiness140

4. Clauses Excepting Unseaworthiness159

5. Negligence168

6. Excepted Perils196

7. Fundamental Breach253

8. Benefits for Third Party333

9. Responsibility before Loading416

10. Through Bills of Lading418

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

12. Carriage of Goods by Sea Act 1971441

5. CONTRACTS BY CHARTERPARTY582

1. Charter by Demise582

2. Other Classes of Charter: Form and Stamp589

3. Agents593

4. Representations in Charter parties611

5. Liability under a Charterparty: Exceptions627

6. Time Charters636

6. BILLS OF LADING FOR GOODS IN CHARTERED SHIP699

1. Bills of Lading given to Charterer699

2. Bills of Lading given to Other Shippers704

3. "Other Conditions as per Charterparty"720

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

7. FRUSTRATION AND ILLEGALITY745

1. Origin of Doctrine of Frustration745

2. Nature of Frustration751

3. Effect of Frustration775

4. Illegality783

5. Dissolution of Contract by War802

6. Express Provision for Cancellation of Charter810

7. Public Policy817

Index to both volumes1

VOLUME TWO835

8. CONSTRUCTION OF THE CONTRACT: CUSTOMS OF TRADE835

1. Rules of Construction835

Introductory835

General rule of construction836

Construction as matter of law839

Introduction to latest developments841

Freedom of contract: sea transport853

Evidence to explain ambiguous terms855

Ordinary meaning of words858

Technical words860

Ejusdem generis rule864

"Contra proferentem" rule869

Document to be construed as a whole870

Meaningless contracts and terms879

2. Conditions Precedent880

Interdependent terms880

Nature of absolute conditions881

Waiver of breach of condition885

Effect of rescission888

3. Implied Terms890

Expressum facit cessare taciturn890

General and special implied terms891

Principle of the Moorcock894

Reasonable performance898

Trade practices900

London Lighterage Clause903

4. Customs of Trade905

Custom may add terms to the contract905

Custom may bind persons ignorant of it908

Custom must be definite and uniformly adopted911

Custom must be reasonable915

General customs918

Custom must relate to subject of contract922

Custom must be consistent with contract923

Local customs927

5. Unfair Contract Terms931

Common law931

Act of 1977932

9. EFFECT OF FOREIGN LAW940

1. Law Governing Contract940

Conflict of laws940

Proper law of contract941

Choice of curial law959

United States law968

Rules of evidence governed by lex fori970

Meaning of terms used971

Adjustment of general average972

Rules of place of performance973

Master's authority respecting cargo974

Through contracts976

Validity of contract977

2. Legality of Contracts978

Scope of sub-chapter978

Contracts against policy of English law979

Contracts valid at place of performance980

Illegality by foreign law; illegal object981

Supervening illegality985

Stipulations void by foreign law990

Part TwoTHE VOYAGE1001

10. PROCEEDING TO PORT OF LOADING1001

1. When Ship Must Proceed1001

Ship to proceed with diligence1001

Time fixed for sailing1002

Time fixed for arrival: cancelling clause1004

2. Where Ship Must Proceed to1010

Naming of port of loading1010

"So near thereto as she can safely get"1011

Ice clause1014

11. LOADING1020

1. General1020

Duties of shipowner and charterer1020

Place of loading1021

Manner of loading1023

2. Charterer's Obligation to have Cargo Ready1026

Obligation absolute1026

Where cargo must be ready1028

When cargo must be ready1032

Impossibility1034

3. Exceptions to Charterer's Obligations1035

Commercial prevention1035

Exceptions to duty to provide cargo1036

Alternative cargo or method or place of loading1038

4. Specific Exceptions1052

"Accidents"1052

"Strikes"1053

Standard strike clauses1059

Other specific exceptions1063

Causes beyond control1066

5. Completion of Loading1070

Interruption does not excuse completion1070

Completion: discharges charterer1071

6. Cargo to be Loaded1072

Ship's space to be filled1072

Agreements relating to part of ship only1076

Goods that may be loaded1077

"Full and complete cargo"1083

7. Relanding Cargo1087

Right of charterer to have goods relanded1087

Relanding from general ship1088

Re-stowage and relanding1089

8. Ship's Obligation to Load1091

Time that ship must wait1091

Must take a full cargo1092

9. Stowage1094

Shipowner's obligation1094

Privity of shipper to bad stowage1099

Appointment of stevedore by charterer1104

10. Dangerous Cargo1107

Damage to cargo by own dangerous nature1107

Liability of shipper shipping dangerous goods without notice1108

Statutes as to dangerous goods1114

Bulk grain1126

Grain Regulations of 19801127

Animals and meat1134

11. Stowage on Deck1136

Whether cargo may be stowed on deck1136

12. Statutes as to Stowage1142

Timber deck cargoes1142

12. PROCEEDING ON THE VOYAGE1160

1. Commencement of Voyage1160

Shipowner's duties1160

2. Deviation and Delay1161

Obligation not to deviate1161

Justifiable deviations1168

Liberty to deviate1176

Effect of deviation1187

Effect of delay1205

Whether condition against deviation is implied1213

Pseudo-deviations1214

The illusion1216

3. Master as Agent of Cargo-owner1225

Master's authority for cargo-owner on emergency1225

Authority to sell goods1229

4. Abandonment of Voyage: Transhipment1236

Duty to repair disabled ship and complete voyage1236

Right to abandon voyage: test1238

Right to tranship1243

Election to abandon voyage or tranship to be exercised in reasonable time1244

Duty to act for cargo-owner if voyage abandoned1245

Effect on freight of abandoning voyage1246

Whether abandonment at sea abrogates the contract1247

5. Bottomry1249

Obsolescence1249

Duty to communicate with cargo-owners1252

6. Order of Priority of Claims against a Ship1253

Maritime liens1253

Mortgages1255

Claims of ship repairers1256

Summary1259

13. SALVAGE AND WRECK1270

1. Nature of Salvage1270

Scope of chapter1270

Principle of salvage1271

Salvage agreements: source of English law1273

Remedies of a salvor1276

Employed salvors1282

Merchant Shipping Act 1894; life salvage1285

Life salvage apart from the Act1288

The salvage service1291

Negligence during salvage1297

2. Who may be Salvors1298

Not persons under duty to assist1298

Pilots and tugs1303

Towage conditions1309

Colliding vessels1312

Salving and salved vessels belonging to same owner1313

3. Amount of Salvage1314

Governing considerations1314

Misconduct of salvors1317

Agreements as to amount1325

4. Contribution to Salvage1330

Contribution in proportion to value1330

Contribution from freight1331

Contribution from cargo1332

5. Wreck1335

Right to wreck at common law1335

Statutes relating to wreck1336

14. GENERAL AVERAGE1345

1. Principle of General Average1345

General average loss1345

Origin of the principle1347

Scope of chapter1348

Whether obligation to contribute is contractual1349

York-Antwerp Rules1350

Use of expression "general average"1351

2. General Average Sacrifices1352

Definition of general average sacrifice1352

The danger1354

The sacrifice1357

Danger due to fault of person claiming1363

Jason clause1368

Actionable fault1372

Rule D of the York-Antwerp Rules1375

Whether sacrifice must be made by master1379

Claims as between separate ships1381

Where all interests belong to one owner1382

Jettison of cargo1383

Sacrifices of ship and ship's stores1388

Extraordinary use of tackle, etc1389

Voluntary stranding1393

Damage in extinguishing fire1398

3. General Average Expenditure1399

Definition1399

Salvage1401

Consequential expenditure or damage1405

Stranding: expense in saving ship and cargo thereafter1409

4. Port of Refuge Expenses1416

Whether deviation to a place of refuge is a general average act1416

Expenses of going in and coming out1418

Wages and maintenance of crew1419

Cost of repairs1422

Expenses of discharging cargo1423

Expenses of reloading1426

Putting in owing to general average damage1428

Warehousing expenses1430

Damage to cargo at port of refuge1432

Losses by delay1435

Expenses substituted for general average expenditure1436

5. Contribution to Sacrifices1437

Principle of contribution1437

Time for adjusting contributions1438

Owner of property sacrificed contributes1440

Values to be ascertained at end of voyage1441

Goods1442

Non-contributing interests1444

Ship1446

Where voyage abandoned at intermediate port1450

Where voyage to several destinations1451

Law of place governs adjustment1453

6. Contribution to Expenditure1454

Whether contribution contingent on adventure succeeding1454

Nature of liability for contribution1460

Expense of obtaining money1462

7. Contributions to and from Freight1463

Where freight payable on delivery1463

Deductions from freight1466

Freight payable on arrival of ship1468

Freight conditional upon subsequent voyage1469

Hire under time charter1472

Freight paid in advance1473

8. Remedies1475

Shipowner's lien for contributions1475

Shipowner's right to sue for contributions1478

Cargo-owner's remedy1480

Arbitration clause1481

Part ThreeTHE DELIVERY1500

15. DISCHARGE: WAREHOUSING1500

1. Port and Place of Discharge1500

Port, how determined1500

Charterer's choice of ports1502

Safe port1504

"So near thereto as she can safely get"1524

Baltic ice clauses1536

Place of discharge1537

2. Mode of Discharge1542

Practice of port1542

Duties of ship and receiver1544

Consignee must be ready to receive cargo1554

Personal delivery1558

Delivery to another carrier to forward1561

3. Warehousing1562

Liability of shipowner where consignee fails to take delivery1562

Merchant Shipping Act 1894—warehousing1567

16. TO WHOM SHOULD DELIVERY BE MADE1591

1. Duty to Deliver to Right Person1591

Principles applicable1591

Where no bill of lading1594

Whether shipper may alter instructions1595

2. Bill of Lading as Document of Title1596

Bill of lading the symbol of the goods1596

Essentials of negotiability of bill of lading1597

Transferee gets no better title than transferor1599

When the property passes1602

C.i.f. contracts1609

F.O.B. contracts1618

Effect of transfer of bill of lading1623

Bill of lading in force until delivery1627

Bill of lading in a set1628

Factors Act 18891631

2. Bill of Lading as Document of Title1635

Legal effect of mixture1635

Conditions as to correct marking1639

Shipowner's duty to apportion mixed cargo1641

17. STOPPAGE IN TRANSIT1651

Nature of the right1651

Exercise of the right1652

Effect of exercise of the right1653

Duration of transit1656

Cesser of transit1657

Defeasance of right1658

Nature of Transfer1659

Comment1660

18. FREIGHT1661

1. When Payable1661

Meaning of "freight"1661

Payment on delivery implied1662

Lump freight1672

Completion of voyage prevented by cargo owners1680

Pro rata freight1685

Advance freight1691

2. How Calculated and Paid1703

Where no rate stated1703

Freight free contract1704

Measurement of goods for freight1705

Agreed freight scales1717

Lump sum freights1718

Mode of payment1720

"Primage and average accustomed"1728

3. To Whom Payable1729

General1729

Payment to master1731

Part-owners1732

Purchaser of ship1733

Mortgagee1734

Assignment of freight1738

Whether owner or charterer is entitled to bill of lading freights1744

Right of underwriters to freight1746

Maritime liens on freight1747

4. By Whom Payable1748

Liability of shipper1748

Liability of consignee1749

Liability for charterparty freight1754

5. Time Freights1757

1. When payable1757

Payment period1759

2. Withdrawal for failure to pay hire1762

Payment must be punctual1762

Developments in the seventies1769

The Chikuma1778

Standard forms of withdrawal clause1780

3. Off hire provisions1781

Need for stipulation1781

Off hire clause1782

4. Repudiation and frustration1793

Wrongful withdrawal of ship1793

Effect of requisition1794

19. DEMURRAGE1811

1. General1811

Provisions as to delay by freighter1811

Nature of demurrage1814

2. Effect of Fixed Lay Time1822

Charterer absolutely liable for delay1822

Default of shipowner1826

General ship1836

Mitigation of damages1837

Detention after completion of loading1838

3. Computation of Lay Time1839

Meaning of "days," etc1839

Daily rate for loading or discharge1860

"As fast as steamer can deliver," etc1862

Loading and discharging considered separately1869

Special agreements1872

4. Effect of Not Fixing Lay Time1876

Obligation of reasonable dispatch1876

Where work done by independent authority1878

The cargo must be ready1879

Whether appliances for work must be ready1880

"In regular turn"1885

5. When Lay Days Begin1888

Notice of readiness to load1888

Ship must have arrived1891

What is an "arrived" ship1892

Readiness for discharge1913

Special provisions1914

Charterer's responsibility for delay in reaching agreed place1928

Loading "as per colliery guarantee"1937

Where lay days are not fixed1940

Whether lay days run continuously where ship is lightened1942

6. When Charterer's Responsibility for Delay Ends1945

Charterer not liable for delay after loading completed1945

7. Dispatch Money1948

8. By Whom Demurrage is Payable1950

Liability for demurrage under bill of lading1950

Liabilities of several holders of bills of lading each containing a demurrage clause1956

Master's right to sue1962

Charterer's liability for demurrage1963

9. Cesser Clause1966

Purpose of clause1966

Forms of the clause1968

Whether lien for "demurrage" includes damages for detention1970

Charterer's liability where no lien1973

Liability of charterer as bill of lading holder1981

20. SHIPOWNER'S LIENS1991

1. Lien for Freight at Common Law1991

Nature of the lien1991

Basis of the rule1993

Lien on freight under charterparty1994

Goods on which lien may be enforced2000

Exclusion of lien by contract2002

Whether there is a lien for freight payable in advance?2004

2. Express Liens2010

Claims not covered by common law lien2010

Form of express lien clause2011

Lien on sub-freights2013

Express lien for dead freight2015

Express lien for hire2017

Express lien for demurrage2020

3. Operation of Charterparty Liens against Bill of Lading Holders2021

By incorporation in bill of lading2021

4. Preservation and Loss of Lien2033

Shipowner must keep possession of goods2033

Loss of lien by inconsistent conduct2035

Impossibility of performance of contract2038

Expenses of preserving lien not recoverable2039

Part FourREMEDIES2051

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

1. Admiralty Jurisdiction in respect of Carriage of Goods2051

Meaning of actions in rem2051

Admiralty jurisdiction2053

Extent of jurisdiction2056

Where action in personam or in rem may be invoked2060

Conflict of laws2061

Remedies in rem and maritime liens2063

Sovereign immunity2064

Remedy in rem2084

2. Losses of Goods by Collision2089

Liability in tort for collisions2089

Both-to-blame collision clause2095

Who may sue2096

Claims against carrier2102

Maritime lien for collision damage2103

Conflict of laws2106

22. MEASURE OF DAMAGES2122

1. Rule in Hadley v. Baxendale2122

The rule2122

Illustrations of the general rule2125

Illustrations of the second rule2129

Authorities since 19092132

Whether reasonable foreseeability is a question of fact or law2140

Plaintiff must mitigate loss2142

Cost of defending actions due to breach2146

2. Foreign Currency and Law2149

Foreign currency2149

Devaluation2167

Proper law2168

Tax element2169

3. Breach of Contract by Freighter2170

Damages for failure to load2170

4. Breach of Contract by Shipowner2176

Failure to supply ship2176

Delivery short of destination2182

Delay in carrying goods2183

Failure to wait for orders2188

Goods lost or damaged2189

5. Damages Fixed by Contract2195

Damages may be fixed by the contract2195

Penalty clauses2193

EPILOGUE2201