商学論叢　第53巻　第3号

Size: px

Start display at page:

Download "商学論叢　第53巻　第3号"

しまなかせ
3 years ago
Views:

1 1) 2) 1) 2003 pg ) pg.197 pg

2 Bills of Lading Act, 1855 Carriage of Goods by Sea Act, 1992 commercial sense 3) 4) evidence carrier shipper consignee B/L holder 3) Leduc & Co. v. Ward [1888] 20 Q.B.D 475 4) S.S. Ardennes (Cargo Owners) v. S.S. Ardennes (Owners) [1951] 1KB 55

3 5) charterparty embody 6) 5) parcel bulk cargo 6) 3 Pyrene Co. Ltd.v. Scindia Navigation Co. Ltd

4 Bramwell Sewell v. Burdick 7) There is, I think, another inaccuracy in the statute, which indeed is universal. It speaks of the contract contained in the bill of lading. To my mind, there is no contract in it. It is a receipt for the goods, stating the terms on which they were delivered to and received by the ship, and, therefore, excellent evidence of those terms, but it is not a contract. That has been made before the bill of lading was given. Take, for instance, goods shipped under a charterparty, and a bill of lading differing from the charterparty, as between shipowner and shipper at least the charterparty is binding. (Sewell, pg.241c) 7) Sewell & Nephew v. Burdick [1884] 10 App. Cas. 74

5 Sewell orbiter dicta prima facie evidence prima facie conclusive evidence Booking Note parole evi-

6 dence Bramwell 8) Olly v. Marborough Court 9) 8) 9) Olly v. Malborough Court [1949] 1K.B. 532

8 10) Pyrene 10) Hague Rule, Article 3, 3(a) 7

9 Co. Ltd. v. Scindia Navigation Co. Ltd. 11) FOB cover Devlin e 11) Pyrene Co. Ltd. v. Scindia Navigation Co. Ltd. [1954] 2 Q.B. 402

10 Antonio Cabarro Tornero S.S. Ardennes Cartagena Antwerp

11 deviation prima facie evidence parole evidence London Antwerp Tarragona Valencia Gandia Cartagena Barcelona

12 12) 13) commercially ridiculous Goddard Ihavenohesitation in finding that there was a promise made to the shippers representative that the ship should go direct to London, and that they shipped in reliance on that promise... (S. S. Ardennes, pg.59) endorsee 12) 13)

13 14) Goddard 15) Esher Fry Lopes Esher The question whether a bill of lading can be anything more than a 14) Wilson, John F. Carriage of Goods by Sea, 6 th ed. Pearson, 2008, pg ) Leduc & Co. op. cit.

14 receipt for goods depends on whether the captain has received the goods, because the captain has no authority from the owner to make a contract of carriage except for goods put on board. If the bill of lading is wrong as to the goods put on board, its effect is destroyed for any other purpose. But if the goods have been received on board, the bill of lading is more than a receipt, it is a contract of carriage. The captain has authority not only to make a contract of carriage, but to reduce it into writing. The bill of lading is, between him and the shipper, the contract for the carriage of goods reduced into writing. Whenever a contract is reduced into writing, that writing is the only evidence of the contract. It can only be varied by showing a usage so general that it must be taken to be imported into the contract. That is the only evidence that can be given outside the written contract. To show that the parties have agreed to some other termsoutside the contract is to seek to vary the terms of a written contract, and that is not allowed with regard to a bill of lading any more than it is with regard to any other contract which has been reduced into writing as the evidence of the contract. (Leduc, pg.268g) 16) 16)

15 Esher 17) Fry 18) Every consignee of goods named in a bill of lading and every endorsee of a bill of lading...shall have transferred and vested in him all rights of suit, and be subject to the same liabilities in respect of such 17) Fraser v. telegraph Construction Co. [1872] L.R. 7 Q.B. 566 ; Chartered Mercantile Bank of India v. Netherlands India Steam Navigation Co. [1883] 10 Q.B.D ) Bills of Lading Act, 1885 (18&19 Vict c 111)

16 goods, as if the contract contained in the bill of lading had been made with himself. Lopes inadmissible Austria Fiume 19) Dunkirk Leduc & Co Ward 19) Rijeka

17 Glasgow Dunkirk Fiume 20) deviation 21) 20) X 21) Wilson, John. F. op. cit. pg. 16

18 customary route 22)...liberty to call at any ports in any order and to deviate for the purpose of saving life or property Esher ordinary sea track notice Esher ordinary sea track 22) Reardon vs. Black Sea and Baltic General Insurance [1939] AC 562

19 mercantile meaning Fry status qua Goddard Leduc & Co. v. Ward.was a case between shipowner and the endorsee of the bill of lading, between whom its terms are conclusive by virtue of the Bills of Lading Act, 1855, so that no evidence was admissible in that case to contradict or vary its terms. Between those parties the statute makes it the contract. (S. S. Ardennes, pg.60)

20 Goddard Goddard Esher

21 Goddard Debattista 23) 24) Esher cover 25) charterparty 26) Esher 27) Esher 23) 24) Debattista, Charles. The Bill of Lading as the Contract of Carriage A Reassessment of Leduc v. Ward,Modern Law Library, Vol. 45, Nov ) Ditto. pg ) charterparty 27) Margetson v.glynn[1892] 1 Q.B. 337, 399 [1893] A.C. 351

22 Esher Esher Esher 28) Esher Debattista Debattista contained in 28) 5

23 Goddard contained in

24 Sewell v. Burdick Bramwell Goddard Debattista status qua Pyrene Co. Ltd. v. Scindia Navigation Co. Ltd. Goddard

25 Debattista 29) Fry contained in the bill of lading c... shall have transferred and vested in him all rights of suit,...as if the contract contained in the bill of lading had been made with himself. c... shall have transferred and vested in him all rights of suit,...as if the contract of carriage had been made with himself. 29) Sewell & Nephew v. Burdick op. cit.

26 30) a The contract of carriage in relation to a bill of lading or sea waybill, means the contract contained in or evidenced by that bill or waybill ; contained in evidenced by 31) 30) Gaskell, Nicholas et al. Bills of Lading : Laws and Contracts, LLP 2000, pg.46 31) Rights of Suit in Respect of Carriage of Goods by Sea, 19March 1991, HMSO

27 32) 33) Bill of Lading as Evidence of Terms on Which Goods are Carried :..Although the bill of lading is only signed by steamship owner (charterer) it is just as binding on the shipper as though he too signed it. In accepting the bill, shipper agrees to all terms and conditions stipulated therein. As before stated, if any printed clauses are contrary to law, such 32) 33) Bross, Steward R. Ocean Shipping, Cornell Maritime Press, 1956, pg.202

28 are void, but all others are binding.. prima facie evidence conclusive evidence

29 34) 35) Incoterms CIF on usual termsthe usual route 36) deviationon deck cargo transshipment partial shipment FOB CIF 34) 1976 pg.31 35) 1992 pg ) ICC Incoterms, CIF A3, a), ICC Publication No.560.

31 Dunkirk via Glasgow B/L B/L Instructions B/L B/L conclusive evidence

32 Letter of Guarantee Sea Waybill 37) 37) pg.264

33 Bross, Steward R. Ocean Shipping, Cornell Maritime Press, 1956 Debattista, Charles. The Bill of Lading as the Contract of Carriage AReassessment of Leduc v. Ward, Modern Law Review, Vol.45, Nov Gaskell, Nicholas et al. Bills of Lading : Law and Contracts, LLP, 2000 Martin, Jacqueline. The English Legal System, 5 th ed., Hodder Arnold, 2007 McKendrick, Ewan. Contract Law, 7 th ed., Palgrave-Macmillan, 2007 Murray, Carole. Schmitthoff s Export Trade : The Law and Practice of International Trade, 11 th ed., Sweet & Maxwell, 2007 Ramberg, Jan. International Commercial Transactions, 3 rd ed., ICC, 2004 Rights of Suit in Respect of Carriage of Goods by Sea, 19March 1991, HMSO Todd, Paul. Modern Bills of Lading, Collins, 1986 Wilson, John. F. Carriage of Goods by Sea, 6 th ed., Pearson-Longman,

商学論叢　第49巻　第3・4号

商学論叢　第49巻　第3・4号 ASBATANKVOY FOB CIF 1) Bulk Cargo Owners Charter Party Space Space Booking Space Fixture Charterer SellerBuyer 1) UNCTAD, Review of Maritime Transport, 2003, UnitedNations 2) Liquid Bulk ChemicalLBC Maritime

商学論叢 第53巻 第3号

商学論叢　第53巻　第3号