CHARTERING

Evidence in Matters of Affreightment

Bill of Lading versus Charter Party

As a document, the bill of lading is more important than the charter party because the negotiable bill of lading gives the right to receive the goods.

In fact the charter party is only a contract of affreightment that only represents the hire of tonnage space; consequently, the charter-party does not represent the goods. For that, another document is necessary that serves as proof ;of the actual loading of the goods and consequently that can be considered as the implementing evidence of the contract of affreightment. This other document is now exactly the bill of lading and for each transport of goods there should, in theory at least, be a charter party and a bill of lading.

In the tramp shipping, where only full cargos are transported, there will generally be a charter party and a bill of lading. In the liner shipping one will generally not find a charter party but only a bill of lading that will also serve as a charter party and play, in

The bill of lading does not replace the contract of affreightment but it is the presupposition of it. The fact that there is a bill of lading creates the presumption that previously a contract of affreightment was already concluded. This way of concluding happens in the liner shipping tacitly, when the ship owner announces the sailing and the destination of the ship, orally or in writing (e.g. via the press) and that the freight forwarder binds himself to ship goods with that named ship.

In that case, the bill of lading is the confirmation and the written proof of the contract of affreightment; the bill of lading is also the proof that the goods were loaded on board the ship.

Conclusion

The bill of lading can be issued in two different manners:

Without a preceding contract of affreightment.

In implementation of a charter party that was signed by the parties concerned.
1. If the bill of lading bears the words "Freight and all other conditions and exceptions as per Charter" the terms of the contract of affreightment are incorporated in the bill of lading, which means that those terms will in fact have to be applied, provided that they are not in contradiction with the terms of the Hague-Visby Rules. (Wildiers, P., Le contrat d'affrètement maritime, Anvers, Editions Lloyd Anversois, 1969, 93.)
2. The bill of lading does not refer to the charter-party. In that case the terms of the bill of lading will prevail on those of the charter party.

Re the relation charter party/bill of lading, Scrutton writes the following in his Charterparties and Bills of lading:

"The terms of the contract may also be gathered from the charter, where there is one provided that its terms either wholly or in parts are expressly incorporated in the bill of lading, or the charterer is also the shipper, in which case the bill of lading as between charterer and ship owner is usually merely a receipt".

An important difference between the charter party and the bill of lading lies in the fact that the charter party is a gestation agreement i.e. that the contract is signed before it is carried out; whereas the bill of lading is an actual agreement because the contract is only signed after the goods have been really loaded on board.

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