Lloyd's Maritime and Commercial Law Quarterly
“CUSTOM OF THE PORT” AS A CATEGORY OF COMMERCIAL CUSTOM
D Rhidian Thomas *
In the factual matrix of commercial transactions are to be found large numbers of commercial practices which are traditionally characterised as customs, usages and mere practices. These practices are not themselves a source of law but nonetheless have played a significant part in the development of commercial law and in ensuring that it serves the needs and expectations of commerce. Their influence may be less than in earlier times but their potential significance is far from spent. In this article the concept of “custom of the port”, as a provision which may be included in commercial shipping contracts, is analysed as a particular category of commercial custom, in the wider context of general commercial practice. As an incident of this enquiry, the distinction between custom and usage on the one hand, and commercial practice on the other, is also addressed.
1. Introduction
The concept of “custom of the port” is deeply rooted in the history of commercial shipping law and practice; and, although its prominence has dimmed over time, as a consequence of developments in commercial and contracting practice, it has not lost all relevance. It continues to occupy a place in the commercial matrix of shipping contracts and practice, and reference to it continues in charterparty forms1 and legal texts.2
“Custom of the port” is, of course, a branch of a wider principle relating to commercial custom, which potentially embraces every aspect of commercial activity.3 The wider learning so acquired is equally applicable to an understanding of custom of the port, and is particularly relevant to questions relating to establishment, validity and significance. Similarly, authorities directly relating to custom of the port may contribute to an understanding of the wider principle, which clearly has been the case.
In traditional legal analysis, the wider principle divides into three categories, namely customs, usages and practices, though defining and distinguishing these categories is an exercise that is not free from difficulty. Customs and usages are similar concepts, alluding to established and settled practices which are treated by the relevant commercial communities as binding.4 They differ, it is suggested, only as a matter of linguistic
* Professor Emeritus of Maritime Law and Founder Director of the Institute of International Shipping and Trade Law, Swansea University, Wales, UK.
1. Eg HEAVYLIFTVOY(2009) cl.10(d), where the contractual purpose is to qualify the potential impact of custom of the port.
2. See Sir B Eder et al (eds), Scrutton on Charterparties, 23rd edn (2015 ), Art.11; J Cooke et al, Voyage Charters, 14 edn (2014), esp. [14.4–14.7, 14.11–14.15 and 15.78–15.80]; J Schofield, Laytime and Demurrage, 6th edn (2011 ), [2.220–2.228].
3. It may also attach to a profession. See generally, Halsbury’s Laws of England, 4th edn (1998 Reissue), vol.12(1) (Custom and Usage); E McKendrick, Goode on Commercial Law, 4th edn (2010), 13–15.
4. See infra, fn.21.
“Custom of the port”
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