CHARTERING


Historical Introduction

The contract of affreightment came into being from the moment the merchant did not personally accompany his goods anymore. Numerous agreements were concluded, between the ship owner and the owner of goods, which were eventually laid down in a contract, namely the “Charter Party”.

The end of the middle ages characterizes itself by a considerable development of the shipping industry. Each harbour has its own customs and uses and different maritime cities already have ordinances in which provisions appear concerning chartering. The customs of some cities and more specifically, the edicts of the Italian and Mediterranean cities have extended themselves very fast to other areas. The legislative provisions from that time, which left their largest marks on the maritime ocean carriage, were: the Consulat de la mer, the Rôles d'Oléron, the Maritime Law of Wisby and the Guidon de la mer.

Numerous decrees were issued. The most important ones were: the Ordonnance de Philippe II of 1563 concerning the sea-borne trade, the Ordonnance d'Anvers of 1570 that mainly dealt with marine insurances, the Ordonnance d'Amsterdam of 1598 and the Ordonnance of the Villes hanséatiques that were issued at Lubeck in 1591.

The different edicts contained different provisions which were related to the chartering agreement; however the Ordonnance de la Marine of 1681, which was established on the initiative of Colbert, the first minister of Louis XIV, gave the true legality to the contract of affreightment and served as a model for many maritime law books.

In the edicts of the Mediterranean cities, mention was made of a crew member who, with regard to the loading of the goods on board and making the inventory of the goods, would play a very important role; that crew member was called the "scribanus" or writer. He had to record all goods which were loaded on the ship in a register (log book) and keep it up to date. The extracts of this log book, which were delivered to the shippers can be considered as the precursors of the bill of lading. For each lot of goods which were loaded on board an extract from the log book was delivered.

It became absolutely necessary that the one who took the goods on board, to carry them to ever increasingly further countries, entered into some sort of engagement. The ”various forms of proof” such as the testimony, etc., were more and more replaced by a written proof. This written engagement was in fact nothing else then the bill of lading (B/L) that, in the Guidon de la Mer, was defined as follows: "Connoissement est la promes­se particulière que fait le maistre du navire de la réception de telle et telle sorte de mar­chandises appartenant à tel marchand, et faut tant de connoissements comme il y a diversité de personnes à qui elles appartiennent".

The charter party as of now would retain its exclusive character of contract of affreightment, whereas the bill of lading would not only become the essential proof from the captain that he received the goods in his ship, but it would also become the document that represents the goods and in certain cases it would even serve as contract of affreightment and take the place of the charter party.

The Ordonnance de la Marine writes about the charter party the following : "Toute conven­ti­on pour louage d'un vaisseau, appelée charte partie, affrètement ou nolissement sera rédigée par écrit et passée entre les marchands et le maître ou les propiétaires du bâtiment".

In the course of the years the charter party became more complicated and contained more and more clauses which led to long negotiations between the parties. On the other hand, the increasing development of trade and shipping created a large variety of contracts of which the terms and clauses, which lacked in uniformity, did not help the negotiations very much. At the end of the nineteenth century the need was felt to make the texts of the charter parties more uniform. Under the impulse of some groups of ship owners such as the Balltic and International Maritime Conference (BIMCO) and the Chamber or Shipping of the United Kingdom typical charter parties were issued which were used all over the world and which were adapted for the transport of a large variety of goods such as coal, wood, ore, petroleum, etc. Notwithstanding all those different types of charter parties were adapted to a well defined traffic, each charter party can contain additional or completing clauses which prevail over the printed clauses.

For goods, for which no specific charter party exists, the "Baltic and International Maritime Conference Uniform General Charter (as revised 1922, 1976 and 1994) including F.I.O. Alternative, etc.", and better known under the name "Gencon Charter", Gencon being the code name of the document, is used. Each charter party has a code name which considerably facilitates the settlement of the negotiations. (See further Official Charter Parties.)

In its enterprise, BIMCO created a Documentary Council which is responsible for the elaboration of a number of documents which are used in the entire world. The Council published about fifty charter parties and ten bills of lading (among which the Conlinebill). For some years now, they also publish: Forms of Approved Documents which is a collection of charter parties, bills of lading and all kinds of other Sundry Forms such as the Standard Time Sheet, the Statement or Fact, as well as a number of typical clauses for charter parties.

Other groupings which issue standard documents are:

In 1985, the name of the Baltic and International Maritime Conference was changed to Baltic and international Maritime Council. (See further The Baltic and International Maritime Council.)

Beside the uniform documents which were established by official agencies (e.g. ship owners’ associations) one finds also a number of private forms which are published unilaterally by a charterer or a group of charterers. Because of their partiality, those charter-parties are generally unfavourable for the ship owner.

The French term “charte partie” is composed of two words: the first word “Charte” dates from the thirteenth century and is originally from the Latin word Charta that means paper; the second word “partie” comes from partir, but not in the sense of to leave but from partager (in Latin: partiri). In former days the charter party was torn in two (from top to bottom) and half of it was entrusted to each party. To examine if the agreement was faithfully observed both halves were again united.

Today, charter parties are found as pre-printed documents and always in English. The blank spaces can be filled in by the parties themselves, according to what they have agreed. Sometimes, the pre-printed text gives the choice between one or different possibilities which the parties can adapt to their taste or complete by means of attached clauses. The elaboration of the text in the English language does not mean that the English legislation applies; in other words, a contract of affreightment is not subject to the English law because it was established in English.

In the following chapters, some typical charter parties will be discussed in detail.







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