97. The owners and/or the persons entitled to sue in respect of cargo latterly laden onboard the ship or vessel “Yaoki” v Owners and/or demise charterers of the ship or vessel “Yaoki” and the ships or vessels listed in the schedule hereto. Case No.: HCAJ 134/2005

Bill of Lading – incorporation – multiple charterparties

The facts

Cargo owners sued the owners and/or demise charterers of the vessel in respect of damage to a cargo of benzine carried under a bill of lading.

The bill of lading contained a prominent clause incorporating the provisions of an unspecified charterparty. There was a time charter and a voyage charter.

The time charter included a London arbitration clause whereas the voyage charter had no arbitration clause.

The shipper sued the shipowner in Hong Kong who sought a stay based on the terms of the time charter.

The shipowner argued that the time charter was the charter party referred to in the bill of lading.

Findings

The court referred to the general principles found in Carver and Scrutton to the effect that courts will attempt to discover the intention of the parties rather than reject the contract as unenforceable for vagueness.

The court found that it was more likely that the time charter was the charterparty referred to in the bill of lading as the shipowner was a party to both the time charter and the bill of lading. The shipper, on the other hand, was a party to the bill of lading but not a party to either the voyage charter or the time charter. It seemed to make sense then that the time charter was the one which the parties intended to incorporate.

A stay of execution was accordingly granted.

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