On The Right To Cancel Voyage Charterparties Before Loading And The Related Problems

As we all know, voyage charterparties (hereinafter referred to as V/C) are quite different from other kinds of contracts. As a part of the distinctive regime of maritime laws and customs, and greatly influenced by the principle of "free contracting" as well as each state's contract laws, V/Cs comprise many complicated problems, including the issue of this dissertation. That is, the V/C parties' right to cancel the contract. For the convenience of discussing, this dissertation will be focused on the "before loading stage" of the performance of a V/C, for the reason that this stage shows most of the features of a V/C and a large number of disputes on a V/C arise during this stage. And the author here has to point out that this dissertation mainly compares the laws and regulations of China and those of England, the former are our national laws, while the latter, as is well-known, represent the international mainstream standpoints in this field.This dissertation can be divided into five chapters.The first chapter is about the legal grounds that entitle the parties to cancel a V/C respectively under Chinese law and English law. In both countries, there are two kinds of such grounds, one is directly from laws, and the other is from the stipulations within a V/C. Whether in China or in England, fundamental breaches or anticipatory breaches of a V/C compose major part of the grounds directly from laws. On the other hand, the two countries' laws on this issue are rather different from each other. Thus, it can be naturally inferred that the two countries have different ideas as to the problems discussed in the following chapters.The second chapter is devoted to an introduction of the parties' respective obligations under a V/C. Since a contract is a combination of rights and obligations, in order to discuss the V/C parties' rights, we should first make their obligations clear.The third chapter, on the base of the discussion in the foregoing two chapters, analyzes one by one the connection between a V/C party's failure to perform his specific obligation and his counterpart's right to cancel, besides a comparison between China's and England's laws on this problem. Generally speaking, whether a party's failure to perform would entitle his counterpart to cancel the V/C, the result of his failure to perform would often be mostly considered. However, that is not always the case because of the inherent specialities of maritime laws and V/Cs.The fourth chapter is concentrated on a specific legal issue, that is, how can a shipowner get the right to cancel while the charterer fails or delays to provide the intended goods. To handle this problem, in both the two countries, the principles and stipulations of contract laws would be applied. However, due to some substantial differences between the two laws, the ways to settle the same problem vary greatly.The fifth chapter deals with the parties' right to cancel given by the stipulations of a V/C. The most commonly used such rights are from the so-called "canceling clause" in V/Cs. Under English law the right to cancel is a matter of contract. In contrast, charterers under Chinese law, because of the Article 97 of the Maritime Code of PRC, do not depend upon the inclusion of such a right in the V/C. Besides, this chapter also discusses a number of problems related to the canceling clause.