The Legal Issues Of Incorporation Of Charterparties Terms Into Bills Of Lading

Liner shipping and tramp shipping are two main ways used in international goods trade.High-capacity,ocean-going ships that transit regular routes on fixed schedules are used in liner shipping to transport goods.Liner vessels,primarily in the form of containerships and roll-on/roll-off ships,carry about 60 percent of the goods by value moved internationally by sea each year according to the data from World Shipping Council.Unlike liner shipping,there is no regular routes and fixed schedules but personalized ones according to the demand of the clients for tramp shipping services.In liner shipping,bills of lading are an important shipping documents that generally function as “receipt for goods shipped”,“evidence of the contract of carriage”,and “a document of title”.However,in charterparties,charterers rent a ship from ship owners and sign a charterparty.According to the different ways of renting,there are voyage charterparties,time charterparties and demise charterparties.With the development of shipping transportation,new types of charterparties came out,such as slot charterparties,continuous voyage charterparties etc.In voyage charterparties,ship owners rent the whole or part of ship space to charterers and agree to carry out designated route to transport goods.As an exchange,charterers have to pay freight and demurrage(in certain circumstance)etc.in this situation,charterers shall require ship owners or captain to issue a bill of lading,that is so called bills of lading under charterparties.Under such circumstances,bills of lading do not function as “evidence of the contract of carriage” but just as “receipt for goods shipped”.Ship owners and charterers shall be subject to the charterparty signed between them.However,because of transferability of bills of lading,charterers and bills of lading holders shall be subject to bills of lading once charterers transfer bills of lading to a third party.Ship owners,therefore,would like to incorporate charterparties terms into bills of lading so that they can be in the same position as they face charterers.That is so called “incorporation clause” such as “BILL OF LADING TO BE USED WITH CHARTER PARTIES” in Congenbill 2007.The arising of “incorporation clause” is because that ship owners are trying to protect their own interests.To some degree,“incorporation clause” has bad effect on bills of lading holders since they are not a party of charterparties and they even have no means to know charterparties items.There are not a lot legislations governing issues arising from incorporation of charterpaties terms into bills of lading in china.There is on a general rule according to the Article 95 of Maritime Code of People's Republic of China,it is valid to incorporate charterparties terms into bills of lading.However,the rule is too general and lack of operability causing confusion and chaos in legal practice.In shipping practice in the world,western countries such as The United Kingdom and The United State etc.have detailed rules governing issues arising from incorporation of charterpaties terms into bills of lading.Although,those rules cannot be used directly in China because of different social and legal system,it can be introduced to China.We can learn from successful experience and advanced laws to set up our own rules according to our social and legal situation.In light of this,I decide to choose this controversial topic for my postgraduate research topic.My research will refer to international debates,including an analysis of relevant terminology,what kinds of charterparties terms can be incorporated into bills of lading,the wording of incorporation,etc.By examining these issues,I hope to shed new light on an old problem.The purpose of this study is to discuss and analyse relevant legal issues based on main international conventions and different domestic laws,to learn from those successful experience and advance laws,and finally to suggest improvements to the legal system in terms of incorporating charterparties into bills of lading in China.Case study,theoretical study,and comparative study will be used in order to achieve above purpose.