Incorporation of Charterparty Clauses into Bills of Lading: Peculiar to Maritime Law?
1 This section is dedicated to Charles Debattista of Stone Chambers, formerly Professor of Commercial Law at the University of Southampton, Law School, for his significant contribution to English Maritime Law. I am grateful for his invaluable comments and suggestions on earlier drafts of this section. All errors and omissions remain my own.
2 [1962] 2 QB 26 (HL).
3 Photo Production v Securicor [1980] AC 827, [1980] 1 Lloyd’s Rep 545 (HL), Lord Wilberforce at 550.
4 However, it must be noted that it may prove difficult to enforce such contractual rights, in particular the right to lien the cargo for the sums due under the charterparty, against the bill of lading holder in a foreign jurisdiction. See, for instance, The Sinoe [1972] 1 Lloyd’s Rep 201.
5 Finska Cellulosaforeningen v Westfield Paper Co Ltd [1940] 2 All ER 473, where it was held that the seller was not obliged to tender a copy of the charterparty referred to in the bill of lading to the buyer. However, see the views of Donaldson J in SIAT di dal Ferro v Tradax Overseas SA [1978] 2 Lloyd’s Rep 470 at 492, which suggest that the buyer will be entitled to sight of the relevant charterparty where the incorporated charterparty terms affect the rights of the buyer. See further C Debattista, Bills of Lading in Export Trade, 3rd edn (Haywards Heath: Tottel Publishing, 2008) para 8.34; M Bridge, Benjamin’s Sale of Goods, 8th edn, (London: Sweet & Maxwell, 2010) para 19-041.
6 This doctrine would appear to derive from the well-known ticket cases, see Parker v South Eastern Railway Co (1877) 2 CPD 416 (CA); Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163; Thompson v London Midland and Scottish Rly Co [1930] 1 KB 41.
7 Parker v South Eastern Railway Co (1876–77) LR 2 CPD 416; Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163; Thompson v London Midland and Scottish Rly Co [1930] 1 KB 41.
8 Interfoto v Stiletto Visual Programmes [1989] QB 433; Poseidon Freight Forwarding Co Ltd v Davies Turner Southern Ltd [1996] 2 Lloyd’s Rep 388; Circle Freight International Ltd v Medeast Gulf Exports Ltd [1988] 2 Lloyd’s Rep 427.
9 Parker v South Eastern Railway Co (1876–77) LR 2 CPD 416, Mellish LJ at 424.
10 Hood v Anchor Line Ltd [1918] AC 837, Lord Viscount Haldare at 844. This rule will not apply where there is a ‘constant’ course of dealing with the parties. A set of terms will be deemed to be incorporated by such a course of dealing, see McCutcheon v David MacBrayne Ltd [1964] 1 WLR 125, Lord Reid at 128; British Crane Hire Corporation Ltd v Ipswich Plant Hire Ltd [1975] QB 303, Lord Denning at 310; Henry Kendall v Lillico [1969] 2 AC 31.
11 Thompson v London Midland and Scottish Rly Co [1930] 1 KB 41.
12 Olley v Marlborough Court Ltd [1949] KB 532. Where the notice is provided after the contract conclusion, the terms can be incorporated by a ‘constant’ course of dealing with the parties, see n 9 above.
13 See n 10 above.
14 Ocean Chemical Transport Inc v Exnor Craggs Limited [2000] 1 All ER (Comm) 519,[1999] WL 1142725, Evans LJ at para 47; Parker v South Eastern Railway Co (1876–77) LR 2 CPD 416, Mellish LJ at 424.
15 Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Megaw LJ at 172–73; Hood v Anchor Line Ltd [1918] AC 837, Lord Dunedin at 846–47; Parker v South Eastern Railway Co (1876–77) LR 2 CPD 416, Mellish LJ at 424; Interfoto v Stiletto Visual Programmes [1989] QB 433.
16 E McDonald, Exemption Clauses and Unfair Terms, 2nd edn (Tottel Publishing, 2006) pp 16, 19.
17 [1956] 1 WLR 461, 466
18 Hood v Anchor Line Ltd [1918] AC 837, Lord Haldane at 844. See also E McDonald, Exemption Clauses and Unfair Terms, 2nd edn, (Tottel Publishing, 2006) pp 16, 19.