Lloyd's Maritime and Commercial Law Quarterly
“A VERY SLAPDASH WAY OF DOING THINGS”:1 THE CHARTERPARTY CLAUSE PARAMOUNT RECONSIDERED
John Weale*
This article examines some of the advantages and disadvantages under English law of incorporating the bill of lading Clause Paramount into the governing charter.
The charter context
To the dismay of the judges—and, perhaps, the covert glee of some practitioners—the owners and operators of ships still retain an abiding attachment to the Clause Paramount as a term of their charter parties—typically, an unedited graft of the provision which is to be included in all bills of lading.2 The ambit and effect of this device may not be fully understood; but it has persisted for so long that the English courts have had little choice but to make the best of a bad job.3
“The courts have not found it easy to make sense of the Hague Rules in the context of a charter-party since clearly these rules were not designed to be incorporated in such a contract.”4 And certainly, interpreting the charterparty clause requires a mix of constructive techniques: as Denning LJ put it, “we find that we have to put our English language to the most uncomfortable contortions and distortions”.5 Some expressions are
* Chairman of the BIMCO sub-committee revising the Gencon charter form. The author gratefully acknowledges the assistance of Professor Richard Williams.
1. Anglo-Saxon Petroleum Co Ltd v Adamastos Shipping Co Ltd (The Saxonstar) [1957] 1 Lloyd’s Rep 79, 85 (Devlin J).
2. As an example, cl.33 of the NYPE 2015 time charter form reads: “33. Protective Clauses The following protective clauses shall be deemed to form part of this Charter Party and all Bills of Lading or waybills issued under this Charter Party shall contain the following clauses. (a) General Clause Paramount This bill of lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States, the Hague Rules, or the Hague Visby Rules, as applicable, or such other similar national legislation as may mandatorily apply by virtue of origin or destination of the bill of lading, (or if no such enactments are mandatorily applicable, the terms of the Hague Rules shall apply) which shall be deemed to be incorporated herein, and nothing herein contained shall be deemed a surrender by the carrier of any of its rights or immunities or an increase of any of its responsibilities or liabilities under said Act. If any term of this bill of lading be repugnant to said Act to any extent, such term shall be void to that extent, but no further …”
3. “[T]he result of the method chosen, the incorporation of the Act en bloc, must be very doubtful. But it is a method which is so common in the composition of commercial documents that the Court has become used to doing its best to find the right solution”: The Saxonstar
[1957] 1 Lloyd’s Rep 79, 86 (Devlin J).
4. The Standard Ardour
[1988] 2 Lloyd’s Rep 159, 163 (Saville J). Cf: “… the difficult problems raised by the incorporation of the Hague Rules into the inapposite context of a time charter”: The Athanasia Comninos
[1990] 1 Lloyd’s Rep 277, 296 (Mustill J).
5. The Saxonstar
[1957] 1 Lloyd’s Rep 271, 277.
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