Edited by Jason Chuah
Chapter 10: The impact of new commercial practices on liner contracts of carriage: new wine in old skins?
Except in situations where a shipper ships goods under a negotiated (volume) contract, in view of their specific nature, contracts of liner carriage are contracts of adhesion. As such, they require regulation in order to protect the interests of the party who accepts the other’s standard terms. This chapter examines the current international legal framework which regulates such contracts, focussing specifically on this framework’s implementation within English law. The current state of this regulatory framework raises two types of issue: (1) grey areas where the applicability of the framework is uncertain and (2) aspects of the transaction on which the framework is silent (i.e. gaps in the regulation). This chapter uses recent case law to illustrate how these grey areas and gaps in the regulatory framework could lead to a situation where the allocation of risks and liabilities is uncertain. It argues that (1) in the case of grey areas, a purposive interpretation of the available rules can overcome the uncertainties and (2) in the case of gaps in the regulation, if the contract itself fails to allocate the relevant risks and liabilities unambiguously, the courts should resolve the ambiguity by adopting a reasonable (and economically efficient) allocation of risk. The chapter also argues that it might be open to the courts, depending on the circumstances, to strike out terms which allocate risk and liability in an unreasonable manner.
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