Voyage Charters

Page 1025

Chapter 51

Issuance of Bills of Lading

(a) The Master shall, upon request, sign Bills of Lading in the form appearing below for all cargo shipped but without prejudice to the rights of the Owner and Charterer under the terms of this Charter. The Master shall not be required to sign Bills of Lading for any port which, the Vessel cannot enter, remain at and leave in safety and always afloat nor for any blockaded port.
[Clause 20 is continued in the next chapter]
51.1 The Asbatankvoy bill of lading clause is of the variety which requires the bills of lading to be in a specified form,1 and it therefore avoids many of the problems which arise under less specific clauses, such as clause 9 of the Gencon charter.

“The Master shall … sign Bills of Lading”

51.2 The master’s duty to sign bills of lading and the authority of charterers or their agents to sign them are considered in detail in .

“in the form appearing below”

51.3 The form is reproduced in Appendix 5. Robert Goff J. considered the effect of this provision in The Garbis,2 and the following propositions are derived from his judgment in that case. Neither party is entitled to demand the use of a different form, or to require additions to or alterations from the form. The form itself contains a large number of blank spaces which must be filled in with the appropriate details and the master is entitled to insist upon this being done before he signs. Among other particulars to be inserted in these blank spaces are the date of the charter under which it is issued,3 and the names of owner and charterer, and the bill of lading form goes on to provide that “all the terms whatsoever” of the charter are incorporated in the bill of lading.4 However, the bill of lading form provides a blank space for the insertion of a rate of freight, and the inference is therefore that the charterer is entitled to require bills of lading to be issued at a different rate of freight from the charter.

Page 1026

“without prejudice to the rights of the Owner and Charterer under the terms of this Charter”

51.4 The effect of this provision is that, notwithstanding the issue of a bill of lading, the charterparty is to remain the governing contract as between shipowner and charterer.5 In practice, as long as the specified form of bill of lading is used, there is unlikely to be any conflict between the bill of lading and the charterparty except as to rate of freight. The owner has a right of indemnity where there is such a conflict.6

Unsafe ports, blockaded ports

51.5 Clauses 1 and 4 of the Asbatankvoy charter contain no express warranty of safety of ports, but one may be implied in certain circumstances7 and the last sentence of clause 20(a) reflects this. In fact, the provisions of clause 20(a) may go rather further and justify the master in refusing to sign a bill of lading for a port which the vessel cannot safely use always afloat, even if there would be no breach of a warranty of safety by the charterer, for example, if there has been an abnormal occurrence. It may be more difficult where there is a named discharge port in the charter, since the shipowners’ agreement to go to that port might preclude a refusal to sign a bill of lading for the agreed port, at least unless there has been a material change of circumstances. 51.6 Where the captain does sign the bill of lading for such a port, he does not thereby waive the owner’s right to damages for breach of warranty of safety where there is such a warranty;8 nor does he waive the right, expressly conferred by the specified form of bill of lading, to deliver the cargo at the port of destination “… or so near thereto as the Vessel can safely get, always afloat …”. Since a blockaded port would normally be an “impossible port”, the provisions of clause 20(a) in this respect add little or nothing to what would otherwise be the effect of the charter.

U.S. Law

51A.1 See Time Charters, paras 21A.1–21A.53. In the absence of an express provision in the COA incorporating the bill of lading, the COA is the contract of carriage and the bill of lading is a mere receipt.9 Accordingly, the Hague-Visby’s one-year prescriptive period was inapplicable.