the travaux préparatoires hague rules hague-visby rules - Comite ...

98 COMITE MARITIME INTERNATIONALThe Travaux Préparatoires of the Hague and Hague-Visby Ruleshe intended or I do not satisfy his criticism that he made just now, I should be grateful.Of course in the great majority of cases where charters are issued the charter itselfcontains a clause that masters will sign bills of lading as required in one form or another,but a certain number of charter parties do not contain that clause. I have comeacross quite a considerable number in the course of my experience, which I supposeis fairly wide. Even where the charter party does provide for the issue of bills of ladingand a bill of lading is issued, there are an appreciable number of transactions in [370]commerce where the charterer retains that bill of lading in his own hands, particularlythose cases where the charterer is shipping raw material from across the water toworks of his own on this side. For instance take an illustration which may be familiarto our friends from Holland. A considerable amount of phosphate rock comes fromthe other side of the Atlantic to super-phosphate works in Holland. In those cases, ifI am right in my recollection, charters for part cargoes, weight cargoes, are issued, (theship filling up with measurement afterwards) in which there is no provision for the issueof bills of lading. No doubt there would be a mate’s receipt to acknowledge thequantity received by the ship. But even if there be a bill of lading according to Englishlaw, and I suspect that it is so in Continental law also, the charter remains of a contractand although the bill of lading is expressed in the form of a contract its terms do notsupersede the terms of the charter party; in other words as our Courts put it, it remainsa mere receipt for the goods. That being so, you have to make up your mind what isintended by the Hague Rules as a matter of substance in regard to shipments of thattype under charter party, Where a bill of lading is issued and retained in the hands ofthe charterer, are the terms of the Hague Rules to govern that shipment or are theynot? One decision or the other may be taken according as the business men presentthink the one is better than the other. I do think it is essential to be clear as to what isintended on that point.[372]Dr. Eric Jackson: The view of the Federation which I represent is that, if there is abill of lading, whether it is issued under a charter party or not, the Hague Rules will beipso facto incorporated in that bill of lading.Sir Leslie Scott: That is obvious.Dr. Eric Jackson: It seems to me that on this point [373] the American representativescould give us useful information because as I understand their Harter Act it appliesto all bills of lading whether issued under a charter party or not, and they must,I should have thought, have had experience during the past 20 years as to what is theeffect of a bill of lading under a charter party. But certainly, as far as the Federation areconcerned, our views is that, if a bill of lading is once issued then under any statute lawthat was passed in this country, the clauses of the amended Rules would be deemed tobe incorporated in that bill of lading, whether the bill of lading came into existence becauseof a prior charter party or not. I think if the other view is taken we should doaway with uniformity brought about by legislation (hear, hear), because I do not knowwhat the definition of a charter party is, but I see no reason why any contract note ofaffreightment, even though is may be only for carrying two bags of wheat from Americato this country, is not in effect a charter party. Therefore, if the other view were taken,it seems to me that the shipowner would escape any legislative sanction upon himto incorporating the amended Rules by simply giving a freight note beforehand andsaying: “I agree to carry your two bags on my vessel” so and so, which as far as I knowwould be legally a charter party though not the ordinary charter party which is knownto commerce.