Lloyd's Maritime and Commercial Law Quarterly
VALIDITY OF THE DEMISE CLAUSE UNDER JAPANESE LAW AND THE CONSEQUENCES FOR ENFORCEMENT ABROAD OF CLAIMS UNDER JAPANESE BILLS OF LADING
The Jasmin
The traditional view has been that under the Japanese law of carriage of goods by sea there could only be one carrier, and that in the case of a time charterparty the carrier was the time charterer. Therefore, the owner of a time-chartered vessel could not be sued by cargo interests in contract but, correspondingly, if sued in tort he could not benefit from exceptions or jurisdiction clauses contained in the bill of lading. On the other hand, because in Japan the time charterer is often a large reputable company with assets in the country, cargo owners happily accepted that their actions for damage to cargo might be brought only against the charterer.
However, in the 1991 decision in The Jasmin,1 recently reported in English,2 the Tokyo District Court recognized a demise clause to be valid under Japanese law. Thus, although it maintained the rule that under Japanese law there can be only one carrier, this court of first instance held that the parties to the bill of lading might agree as to whom that carrier might be. The Jasmin case has important consequences not only for parties to Japanese actions, but also for parties to foreign in rem actions when the relevant bill of lading contains a choice of law clause providing that Japanese law shall govern.
The traditional position in Japan
The rule that only the time charterer could be the carrier developed from the Japanese Supreme Court’s idiosyncratic3 classification of charterparties in R.D. Tata & Co. v. Taiyo Shipping Co. Ltd.4 In this case voyage charterers letting from
1. (1991) Hanrei Jiho No. 1379.
2. Mr Arthur Fujiwara’s elegant translation is published in the Bulletin of the Japan Shipping Exchange (March 1992), Nos. 22 and 23, pp. 1–19.
3. This classification was apparently devised to avoid the natural wording of Art. 759 of the (Japanese) Commercial Code, which provides:
Where a contract of carriage is made with reference to the whole or part of a ship, and the charterer in turn makes a contract of carriage with a third person, the shipowner alone shall be liable to the third person for the performance of such contract so far as the duties of the master are concerned.
So far as concerns contracts of carriage governed in Japan by the Hague Rules, this Article was repealed in the International Carriage of Goods by Sea Act, Law No. 172, 1957 (Japanese COGSA).
4. (1928) 7 Minshu 8 (hereafter “R.D. Tata (1928)”). In R.D. Tata & Co. Ltd. v. Taiyo Shipping Co Ltd. (1931) 2311 Horitsu Shinbun 16, the Supreme Court applied the classification of charterparties set out in the earlier case and held that the charterparty in that case, on usual time charter terms, was a combined contract of lease and labour, and therefore the shipowner could not be liable to the shipper.
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