On Legal Issues Of The Incorporation Clause In Bill Of Lading

The charter party incorporated into the B/L exerts great influence on the right and obligation of the contracting parties of the B/L. Owing to the defects existing in the relating laws in our country, judicial practice is in mess dealing with this question. So legal issues on the incorporation clause of the B/L is regarded as a"grey area"in the Maritime Law and disputes arise accordingly, thus consequently affects the development of the international trade, make it necessary to have a deep study on this issue.By using the method of comparison and case analyzing, the thesis tries to make an initial research into the legal issues on the incorporation clause of the B/L through drawing on the long time accumulated successful experiences of Common Law, in combination with the legislation and judicial practice in China.There are four chapters except the preface and the conclusion:Chapter one"introduction of the incorporation clause of the B/L",through a simple introduction of the B/L and charter party, explains the reasons why it emerges and its meaning, points out the incorporation clause of the B/L discussed in this paper comes from the voyage charter party. Analyzing how to recognize the relevant parties of the incorporation clause of the B/L, namely, the carrier and the B/L holder correctly. Combining the contract explanation principle of Common Law with the specialty of the incorporation clause of the B/L, tries to summarize the general explanation principle of the incorporation clause of the B/L.Chapter two"the forms and contents of the incorporation clause of the B/L", by comparing the case of Rena-K of Britain with Son Shipping of America, illustrates the different requirements for the forms of the incorporation clause of the B/L in two countries, though they belong to the same legal system. When it comes to the contents of the incorporation clause of the B/L, by introducing several classic cases, such as Annefield of Britain and Otto of America, compares the existing system in British Law with the flexibility in American Law, makes an inquiry into the difference towards the arbitration clause in charter party incorporated into the B/L in two countries.Chapter three"the requirement for judicial effect of the incorporation clause of the B/L", carries on the substantive research on the preconditions an incorporation clause of the B/L should possess to produce judicial effect. Putting forward the author's opinion to the law application for the incorporation clause of the B/L. By expounding the case of San Nicholas, emphasizing the principle of identification for the incorporating charter party and its exceptions. By Merak,Miramar,Rena-k, illustrating the different attitudes in Britain toward the charter party clause which direct germane to the B/L and the arbitration clause.Chapter four"current state in China and suggestions for perfection", assesses the defects relevant to the incorporation clause of the B/L in the Maritime Law and the Arbitration Law, such as the roughly enacted 95th clause in the former which results in the conflictions with others and, the latter doesn't recognize the interim arbitration which violates the concept of arbitration and the international practice, tries to raise some proposals. Then pointing out the judicial practice is in mess dealing with the incorporation clause of the B/L. To protect the legal rights of the B/L holders and for the healthy development of the international trade, we should learn Britain's successful experience to distinguish the normal incorporation clause and the special ones. By analyzing the three models those who say no to the effect of the arbitration clause in the charter party which incorporated into the B/L, namely, directly denies the effect of the arbitration clause in a charter party; recognizing the effect of the arbitration clause in a charter party, but denies it can be incorporated into a B/L; recognizing the effect of the arbitration clause in a charter party and admitting it can be incorporated into a B/L ,but considers it has not binding force on the holder of a B/L, the author indicates their faults, and therefore puts forward his own attitudes.