Journal of Korea Trade, Vol.10, No.2 Received : December 8, 2005 August 2006, pp.143~167 Accepted : August 22, 2006 A Comparative Analysis on the Identification of the Bill of Lading Carrier Won-Jeong Lee* Abstract Where the carrying vessel is under a time charter, the identification of the bill of lading carrier is one of the controversial issues in the law regulating carriage of goods by sea Cargo claimants are often not sure whom they should sue ~ the shipouner or the time charterer, or indeed both. ‘This article attempts to examine some national courts’ attitudes toward the identification of the bill f lading: carrier and to offer advice on how to deal with it. The comparative analvsis of some rational decisions shows that, in the absence of uniformity of international maritime law, the courts handling the identity of carrier problem often adopt different approaches. This article suggests that the identity of carrier problem must be approached from a commercial standpoint which takes account of the bill of lading holder's perception, placing more importance on the carrier's name on the heading of the bill of fading. Further, this article calls for an approach which will lead to Joint liabiliew of the shipowner and the time charterer when the bill of lading does not contain a clear statement ax to the identity of the carrier on its face and or if the carrier is insolvent. Key Words: contract of carriage of goods by sea, bill of lading, carrier, time charter, demise clause. identity of carrier clause + Lecturer(Ph.D., Department of International Trade, Duksung Women's University 143Journal of Korea Trade I. Introduction A practical concer regarding the enforcement of a bill of lading is the identification of the contractual carrier. Where the carrying vessel is not under a charter, the shipowner will invariably be liable as the carrier for the loss of or damage to cargo. Also, where the carrying vessel is under a demise charter, the demise charterer will normally be liable as the carrier, since he usually takes over the complete possession and the management of the vessel from the shipowner. Generally, the issue of "who is the carrier” tends to arise most frequently when a time charterer issues a bill of lading. In a time charter, the shipowner retains navigational control of the vessel and transfers commercial control to the time charterer. Therefore, the contractual liability to a consignee or subsequent holder of the bill of lading uncertain, because the carriage obligations are shared by the shipowner and the time charterer. Unfortunately, the Hague Rules do not specifically define the term “cartier’.!” The Rules merely provide that the carrier includes the shipowner or the charterer who enters. into a contract of carriage with a shipper. This is not a particularly clear or exhaustive definition. Under this definition, the carrier could be the shipowner or the time charterer or both, The use of the word “includes” also implies the cartier could be some other person who is neither the shipowner or the time charterer, Under the absence of uniformity of international maritime law on the question concerning who is the bill of lading carrier, a wide variety of approaches for identifying the carrier have been applied by the courts. As a result, some national laws are more 1) International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading signed at Brussels, 1924 and entered into force June 2,1981 {hereinafter the Hague Rules]. The Hague Rules were amended by the Protocol to Amend the 1924 Convention, signed at Brussels 1968 and entered into force june 2%, 1977 Thereinafier the Hague/Visby Rules]. United Nations Convention on the Carriage of Goods by Sea signed at 1973 hereinafter the Hamburg Rules). Article 1 (a) in the Hague Rules define that "Carrier" includes the shipowner or the charterer who enters into a contract of carriage with a shipper. In the Hamburg Rules, Article 1 (1) and (2) state that "Carrier" means any person by whom or in whose name a contract of carriage of goods 5 been concluded with a shipper and “actual carrier” means any person to whom the performance of the carriage of goods, oF of part of the carriage. has been entrusted by’ the carrier, and includes any other person to whom such performance has been entrusted. - 144 -‘A Comparative Analysis on the Identification of the Bill of Lading Carrier favorable to the shipowner, while others are more favorable to the time charterer. ‘Therefore, when the cargo claimant is faced with this issue, he should pay attention to the question of the applicable law, because it may determine the outcome of a dispute. This article attempts to examine some national courts’ attitudes to the identification of the bill of lading carrier under a time charter and to offer advice on how to deal with it I. Importance of Identifying the Carrier Identifying the right contractual carrier is crucial for an aggrieved cargo owner seeking an effective and efficient remedy for the loss or damage of his cargo. In brief, three reasons for identifying the right carrier can be put forward. First, incorrectly identifying the carrier can have significant consequences if the bill of lading provises that the jurisdiction shall be the domicile of the carrier, always assuming such a clause is upheld by the court seized of the dispute. Second, the cargo claimant should bring a suit against the bill of lading carrier within the specified time limit, Where the bill of lading is governed by the Hague/Visby Rules, any cargo claim is usually barred if it is not instituted within a twelve month time limit! In the Antares! the time bar of one year was strictly applied where the shipowner was guilty of a fundamental breach of contract, e.g., in stowing the goods on deck, Therefore, a Wrong choice might be fatal since, by the time it is discovered, it may be too late to commence proceedings against the true defendant.*! In the Henrik SIF? cargo interests pursued their recovery claim against the time 2) Article 316) fourth paragraph in the Hague/Visby Rules states that the carrier and the ship shall in any event be discharged from all liability whatsoever in respect of the goods, unless suit is brought within one year of their delivery or of the date when they should have been delivered. However, this period, may be extended if the parties so agree after the cause of action has arisen, [19871 1 Lovd’s Rep. 424 4) John B. Wilson, 2001), Carriage of Goods by Sea, Pearson Education Limited, p.231 [192] 1 Lloyd's Rep. 456, However, the conduct of the time charterer in his deaiingss with cargo interest led the court to find that the time charterer had represented that he was the contractual carrier under the bill of lading, and could not then deny it after the time bar nad aIJournal of Korea Trade charterer who had issued his own standard bill of lading. However, the bill of lading contained a demise clause. The time charterer granted cargo interests an extension of time after the one year time bar. But as soon as that time bar had expired, the time charterer referred the cargo interests to the demise clause and pointed out that cargo interests could only pursue their contractual claim against the shipowner. ‘Third, the importance to identify the bill of lading carrier is closely connected with the right to obtain a security by arrest. If the shipowner is not the bill of lading carrier then it may be difficult or even impossible for the aggrieved cargo owner to obtain security for his recovery claim, by way of an arrest of the carrying vessel. In most jurisdictions, in order to arrest the vessel, the cargo claimant must have a legally valid cause of action against the shipowner. If the shipowner is the bill of lading carrier, then the cause of action will usually be a straightforward chain for breach of contract. In contrast, if some other party is the bill of lading carrier, then the cargo claimant may only be entitled to pursue his claim against the shipowner in tort or an unlawful act of the master and crews! Il. Approach for Identifying the Carrier ‘The Hague Rules’ definition of the carrier is so general that it remains essentially undefined. In contrast, the Hamburg Rules describes the carrier as any person by whom or in whose name a contract of carriage of goods by sea has been concluded with the shipper. However, even though this definition is broader than the one found in the Hague Rules, the Hamburg Rules also fail to settle the identity of carrier problem, This problem expired. nder a time charter, most of jurisdictions consider that the shipowner is liable for the third party's loss or damage caused by the crew's illegal acts, because he employes the crews and retains navigational control of the vessel. Particularly, the general rule in English law is that a cargo claimant is able to pursue a tort claim on the basis that the damage to the cargo wi caused by the crew's negligent act. and the cargo claimant must be the shipowner of the cargo at the time of the occurrence of the negligent act. AS such, where the stowage is negligently performed at the loading port, and the cargo’s damage inevitably occurred from the beginning of voyage, the only party entitled to pursue the shipowner on a tort basis is the cargo seller, whereas the CIF buyer who is the lawful holder of the bill of lading could not pursue any claim against the shipowners The Swedish Club, (2001), "Bill of Lading,” The Swedish Club Letter, Vol.l, pp22-23, 6 - 146 -A Comparative Analysis on the Identification of the Bill of Lading Carrer is particularly complex on the basis that determining the identity of the carrier is "a question of fact that depends upon the documents and circumstances of each case”. As discussed below, the courts have nevertheless, in certain instances, set out criteria and guidelines 1. The Legal Nature of a Time Charter In a time charter, the shipowner places his vessel for an agreed period at the disposal of the time charterer who is free to employ it for his own purposes within the permitted contractual limits. The shipowner undertakes the obligations concerning the navigational management of the vessel, while the time charterer undertakes the obligations concerning the commercial management of the vessel. In practice, however, most time charterparties include the so-called “employment clause" entitling the time charterer to have full use of the vessel within the limits stipulated in the charterparty and undertaking that the master will comply with the time charterer’s orders and instructions. A time charter, therefore, can be considered as a mixed contract between a demise charter and a contract of manning. Under this approach, the time charterer holds the position equivalent to the demise charterer against a third party bill of lading holder and is liable as the carrier, Generally, civil law jurisdictions treat a time charter as a mixed contract and, as a consequence, the time charterer is considered the carrier. In contrast, under Common Law, a time charter can be also considered a contract of carriage. This approach is based on the fact that the shipowner retains control of equipping and managing of the vessel and agrees to place the carrying capacity of his vessel at the disposal of the time charterer for a specified period of time. In short then, the shipowner is the carrier who enters into a contract of carriage with the shipper.” ‘There is also the plural carrier approach under which both the shipowner and the time charterer can be considered as the carrier. This approach is based on the theory that a time charter is an joint venture between the shipowner and the time charterer. As explained above, the former undertakes the navigational management of the vessel while the latter directs the commercial management of the vessel. As a result, both undertake 7) In-Hyeon, Kim, (2002), A Study on the Carriage of Goods by Sea Act, Sam Woo Sa, pp7l-72Joumal of Korea Trade the duty of performing a contract of sea carriage and are jointly and severally liable as the carrier. Particularly in the Unite States, there is a tendency in many instances to hold the shipowner and the time charterer jointly and severally liable. Under the Hamburg Rules, there are clear legal grounds for imposing joint liability on the shipowner and the time charterer. These rules expressly provide that, where the performance of the carriage or part thereof has been entrusted to an actual carrier, the cartier remains responsible for the entire carriage, while the actual carrier is jointly and severally liable for that part of the carriage entrusted to him. 2. The Law of Agency ‘The signature on the bill of lading can be the key to the identification of the carrier. Particularly, the signature is often decisive under Common law jurisdiction. The law of agency focuses on the issues of who signed the bill of lading and under whose authority the bill of lading was issued. Where the bill of lading is signed by the master, the general principle is that it binds the shipowner, as the master is considered the general agent 8) Article 10(Liability of the carrier and actual carrier) states as follows: 1. Where the performance of the carriage or part thereof has been entrusted to an actual carrier, whether or not in pursuance of a liberty under the contract of carriage: by sea to do so, the carrier nevertheless remains responsible for the entire carriage according to the provisions of this Convention. The carrier is responsible, in relation to the carriage performed by the actual carrier, for the acts and omissions of the actual carrier and of his servants and agents acting within the scope of their employment. 2. All the provisions of this Convention governing the responsibility of the cartier also apply to the responsibility of the actual carrier for the carriage performed by him, ‘The provisions of paragraphs 2 and 3 of article 7 and of paragraph 2 of article 8 apply if an action is brought against a servant or agent of the actual carrier. 3. Any special agreement under which the carrier assumes obligations not imposed by this Convention or waives rights conferred by this Convention affects the actual cartier only if agreed to by him expressly and in writing. Whether or not the actual carrier has so agreed, the carrier nevertheless remains bound by the obligations or waivers resulting from suck special agreement. 4, Where and to the extent that both the carrier and the actual carrier are liable, their lability is joint and several 5. The aggregate of the amounts recoverable from the carrier, the actual carrier and. their servants and agents shall not exceed the limits of liability provided for in this Convention, 6. Nothing, in this article stall prejudice any right of recourse between the carrier and the actual cartier.‘A Comparative Analysis on the Identification of the Bill of Lading Carrier of the shipowner. Clause 30 of the New York Produce Exchange Time Charter (1998) states that the time charterer may sign bills of lading or waybills on behalf of the master®) Then, the bill of lading is normally signed by the time charterer or its agent on behalf of the master. In this ¢, it is generally understood that the master gives an express authority to the time charterer to sign the bill of lading. As a results, the shipowner can be the carrier. However, the employment clause of a time charter provides that the master (although appointed the shipowner) wall be under the orders and directions of the time charterer. ‘The effect of this clause is that the master may be regarded as the agent of the time charterer. Accordingly. the bill of lading signed by the time charterer for and on behali of the master binds the time charterer. 3. The Appearance of the Bill of Lading ‘The bill of lading is normally issued in the shipowner’s or the time charterer’s form with the name of the carrier on the front side. The carrier's name on the bill of lading 9) ‘The New Yorks Produce Exchange ‘Time Charter (hereinafter referred to as the NYPE) was first published by the New York Produce Exchange in 1913. Under the auspices of the New York Produce Exchange, the NYPE has been amended from time to time, ie. in 1921, in 1931 and in 1946, With no up-dating or amendment to the NYPE since 1946, a first attempt to modernize the charter was initiated by ‘The Association of Ship Brokers & Agents (U.S.A.}, Inc. (ASBA), New Yorks in 1977. During the revision work, ASBA undertook a wide consultation with interested parties including ‘The Baltic and Intemational Maritime Council (BIMCO) and ‘The General Council of British Shipping (now The Chamber of Shipping). ‘The revised form, known as the "ASBATTIME", was published by ASBA in 1981 but gained only limited acknowledgment and use in the market place, Recognizing. the importance of the NYPE as the most commonly used time charter form for dry cargo vessels, the Chartering ‘and Dacumentary Committee of ASBA decided in 1992, in co-operation with BIMCO and the Federation of National Associations of Ship Brokers and Agents (FONASBA), to undertake a general revision of the NYPEYASBATIME Charter, taking into account changes in market practices and ship's types, ete. which have taken place since the latest revision and, thereby. hopefully produce a workable and up-to-date form which would be endorsed in the market place and which would assist the parties in their day-to-day business transactions. In pursuance of this objective, the revision work had been completed and the resulting revised New Vork Produce Exchange Time Charter, Code Name: NYPE 98, marked “Revi September 14th, 1993" has been officially approved by the Board of Governors of ASBA and hhas been adapted by the Documentary Committee of BIMCO as a "Recommended" form: similarly, the charter has been adopted by the Chartering. and Documentary Committee of FONASBA. — 149 =Journal of Korea Trade can be significant when seeking to identify the carrier, because the third party holder of the bill of lading has no conclusive information on the carrier. Therefore, Article 15) of the Hamburg Rules and Article 23(a)(i) of the Uniform Customs and Practice for Documentary Credit, 1983 Revision(ICC No.500, hereafter UCP) provide that the bill of lading must include the name of the carrier on its face. However, when the bill of lading does not indicate the name of the carrier, the demise clause on the reverse side of the bill of lading can be the key to identify the carrier.10 ‘The demise clause was originally inserted in the time charterparty in order for the shipowner to protect his liability against the cargo claimant.” Today, this clause provides that the contract evidenced by the bill of lading shall take effect between the merchant and the owner or the demise charterer of the vessel. The purpose of such clause is firstly to ensure that the person who is in actual possession of the vessel and cargo is the party to the contract of carriage with the cargo owner, and secondly to ensure the 10) The demise clause customarily reads that "If the ship is not owned or chartered by demise to the company or line by whom this bill of lading is issued (as may be the case notwithstanding anything which appears to the contrary) the bills of lading shall take effect as a contract with the shipowner or demise charterer, as the case may be, as principal made through the agency of the said company or line who aets as agents only and shall be under no personal liahility whatsoever in respect thereof.” Meanwhile, there is another clause, called “the identity of carrier clause”, which is similar to the demise clause, It reads that “the contract evidenced by this bill of lading is between the Merchant and the shipowner of the vessel named herein and it is, therefore, agreed that the said shipowner alone shall be liable for any damage or loss due to any breach or non-performance of any obligation arising out of the contract of carriage, whether or not relating to the vessel's seaworthiness. If, despite the foregoing, it is adjudged that any other is the Carrier and/or the baile of the goods shipped hereunder, all limitations of and exoneration from, liability provided for by Taw or by this bill of lading, shall be available to such other. It is further understood and agroed that as the Line, Company or Agent who has executed this bill of lading for and on behalf of the Master is not a principal in the transaction, said Line, Company, or Agent shall not be uncler any liability arising out of the contract of carriage nor as Carrier nor baile of the good." The main difference between two is that the demise clause extends liability to the demise charterer 11) This clause is called the “reverse demtise clause", which contained that "the captain sand crew, although paid by the shipowners, shall be agents and servants of the charterers forall purposes, whether of navigation or otherwise, under the charter. In signing bill of lading it is especially agreed that the captain shall only do so as agent for the charterers: and. the charterers hereby agree {0 indernnify the shipowners from all consequences or liabilities if any) that may arise from the captain signing bill of lading or otherwise complving with the same. = 150 =A Comparative Analysis on the Identification of the Bill of Lading Carrier person who is thus liable is entitled to the benefit of the statutory limitation of liability, which at one time did not extend to the time charterer.l2) Nevertheless, this clause’s validity has been a subject of much controversy in comparative law. Such as, the demise clause is generally used to identify the shipowner or the time charterer as the carrier by both English law and Japanese law, but is considered null and void under some national Jaws,!3) WV. Comparative Analysis 1. Civil Law Countries 1) Korean Decision Korean courts are of the view that a time charter is a type of a demise charter, so that the time charterer is regarded as the contractual bill of lading carrier who is responsible to the third parties. In 1990 in the Polsa Dos,!" the defendant(herealter, the time charterer) chartered the vessel, MV.’Polsa Dos" from the shipowner for three months under the amended NYPE form dated on 21st June 1988. The time charterer voyage-chartered the vessel to load a parcel of plywood from Samalinda, Indonesia to Incheon, Korea. After the completion of loading, the bill of lading was issued by the time charterer's agent for the master under the Conlinebill form.) The identity of the carrier clause was inserted on the reverse side 12) Paul ‘Todd, (1988), Contracts for the Carriage of Goods by Sea, BSP Professional Books, p.I2Li Julian Cooke et al, (1983), Voyage Charters, Lloyd's of London Press Ltd, p38] 13} See Hee-Seok. Bang and Won-Jeong, Lee, (2002), "Approach to Validity of the Demise Clause over the Contracts for the Carriage of Goods by Sea”, International Commerce, Vol.17 Nok pps 14) Oriental Fire & Marine Ins. Co. v Dongnama Shipping Co. Ltd ("The Polsa Dos” : The ‘Supreme Court, 1992.2.25.) 15} The Conlinebill is extensively used throughout the maritime industry either as a port-to-port” bill of lading or as a through transport document, It was first published by BIMCO in 1950 and has been amended in 1962, 1973, 1974, 1976, 1978. BIMCO has recently completed the revision of one of its most widely used forms in 2000. The face of the Continebill 2000 is strikingly different in appearance to its predecessor, Particularly, theJournal of Korea Trade of the bill of Jading. During the voyage, the vessel called at Sebu, Philippines due to the breakdown of the main engine. The loaded cargo was transhipped to another vessel, At the discharging port, the receiver found that the cargo was partially damaged by reason of negligent cargo handling during transhipment at Sebu. The cargo underwriter, as the claimant, brought, an action against the time charterer, alleging that the time charterer was in breach of the bill of lading contract. The time charterer contended that he was not bound by the Dill of lading contract. because the bill of lading carrier was the shipowner In holding that the bill of lading signed by the time charterer's agent for the master was the time charterer’s bill, the District Court ruled that? Even though the time charterer has not possession of the vessel, he has a right to order the master and crew, because the governing charterparty provides that the master (although appointed by the shipowner) shall be under the orders and directions of the time charterer as regards to employment and agency. Also, the time charterer performs all cargo handling at their own expense under the supervision of the master. Thus, the time charterer is of the position equivalent to the shipowner against a party bill of lading holder, by analogy with the Article 766 of the Korean Commercial Code.!6) Turing to the application of the Article 806,17) this provision should be excluded when the time charterer has a right to order against the master or crew as in this case. signature box has undergone a significant amendment to ensure that the requirements of Article 23 of the ICC Uniform Customs and Practice for Documentary Credits (UCP 500) are met. Above the signature box, the carrier's name and principle place of business must be stated, The Bill of Lading must be signed or otherwise authenticated by (1) the cartier or a named agent for and on behalf of the carrier, or (2) the master or a named agent for and on behalf of the carrier. Therefore, the signature box used in Conlinebill 2000 complies with the above UCP 500 requirements and should help eliminate many of the problems that banks have with accepting bills of lading, 16) (The District Court, 1990823) ; The article 765 of the Korean Commercial Code provides that, where the demise charterer employs the vessel for their commercial interests, he undertakes the shipowner’s rights and obligations against the third party bill of lading holder. 17) The article 766 of the Korean Commercial Code states that, where the time charterer enters into the contract of carriage with the third parties, the shipowner is also responsible to the ird parties for cargo's damages due to unseaworthiness or careless cargo handling within the master's duty. - 152 -‘A Comparative Analysis on the Identification of the Bill of Lading Carrier ‘The High Court admitted the District Court's decision, supplementing the validity of the identity of the carrier clause on the reverse side of the bill of lading." The court held that, given that the time charterer’s position against the lawful bill of lading holder was the same as the shipowner, the identity of carrier clause was an exemption clause relieving the time charterer from the liability for the loss or damage to the cargo and it was null and void against the third party holder of the bill of lading. ‘The Supreme Court reconfirmed that the lower court's decision was reasonable in the view of evidence considered in the decision. As regard to the validity of the identity of carrier clause, the court also ruled that, taking the protection of the third party holder of the bill of lading in good faith into account, this clause could be applied to an internal relationship between the shipowner and the time charterer and had not an effect on the interpretation of the legal nature of the time charter. As a result, under the mixed contract theory, the Supreme courts considered the contractual carrier without due consideration to the appearance of the bill of lading. However, in the Tokyo Senator. the position of the Korean court was. sharply changed in respect to the identification of the carrier. In this case, the time charterer sub-chartered out part of the vessel's space to a slot charterer. Several containers were damaged, which had been covered by the bill of lading sued by the slot charterer. The cargo underwriter claimed against the time charterer, in the belief that the Korean court considered the time charterer as the carrier under the mixed contract theory. Ultimately, the Supreme Court found the slot charterer to be the carrier given the fact that the stot charterer ‘as named as the carrier as well as the recipient of the ocean freight on it’s reverse side. Therefore, this authority has added a new dimension to the enquiry as to whether the bill of Jading is the time charterer’s bill or the shipowner's bill 2) Japanese Decision. ‘The situation in Japanese law as to the identification of a carrier was similar to that ing in Korean law, because the relevant part of the Korean Commercial Code is based on the Japanese Commercial Code. In RD. Tata & Co v. Taiyo Shipping Co", the © 18) Che High Count, 1981 19) (Phe Sunreme Cour: 208Journal of Korea Trade ‘Supreme Court held that the time charterer was the carrier, as the time charterer and the demise charterer has stood as the same position under the mixed contract theory for a long time. This decision has been supported by the majority of Japanese legal scholars and practitioners. However, the Japanese court changed their attitude in the Jasmine2!) In this case, a cargo of rice bran extraction pellets was loaded on the vessel, MV. "Jasmine" in April, 1986. The cargo was delivered to Korea in a damaged condition in May, 1985. The bill of lading was issued by the time charterer's agent for the master, bearing the name of the time charterer at the top side of the bill of lading. The cargo underwriter claimed for damages against the time charterer for breach of contract and against the shipowner for either tort or breach of contract, The time charterer argued that the bill of lading carrier was not the time charterer only but the shipowner, Also, the shipowner contented that the heating damage to the cargo was caused by a latent defect before loading, so that the carrier was not liable for the damage to the cargo.’ ‘The District Court and the High Court both decided that, even though the bill of lading contained the time charterer’s name on its face, the bill represented a contract of carriage with the shipowner, because the bill of lading was signed “for the master” and contained the demise clause on the reverse side of the bill of lading.23) ‘The cargo underwriter made a final appeal to the Supreme Court regarding a claim for the damaged cargo. The final appeal was dismissed by the Supreme Court. The court reasoned that: (i) Under a demise charter or a bareboat charter, the charterer takes possession and complete control of the ship. The charterer mans and equips the vessel and assumes all responsibility for its navigation and management. For all practical purposes, he acts as the shipowner for the period of the charter and is responsible for all expenses incurred 21) Oriental Fire & Marine Ins Co. v Kansai Steamship Cot"The Jasmine” ; The Supreme Court, 1998. 3, 27.): See Kazuo Satori, (1988), "The Supreme Court Ruling in the Jasmine ‘Translation and Comment.” The JSE Bulletin, No37, The Japan Shipping Exchange, pp.1-6. 22) Regarding the details on whether or not the carrier was liable for the heating damage. see Robert Margolis, (1993), “Validity of the Demise Clause under the Japanese Law and the Consequences for Enforcement abroad of Claim under the Japanese Bills of Lading,” Lloyd! Maritime and Commercial Law Quarterly, pp.1641-175. 23) (The District Court, 1991319 and The High Court, 1962. 2. 24,) ~ 154 ~A Comparative Analysis on the Identification of the Bill of Lading Carrier in the operation of the vessel. The shipowner thus can not be held to be a carrier as to the contract of carriage. (ii) Under a time charter, the shipowner employs the master and crew and equips the vessel for a voyage. The shipowner continually maintains pos the charterer has an authority relating to commercial matters. (iii) In view of the above cession because he retains an authority to order and direct the master and crew, while difference between a demise charter and a time charter, it should not be interpreted that the time charterer is always responsible for a cargo claim by the application or the analogy of Article 704, Section 1 of the Commercial Code” regardless of the terms, the bill of lading sas issued by the master. (iv) All Judges dismissed the cargo claimant's final appeal against the time charterer. ‘The significance of the Jasmine case is that the courts considered both the agency approach and the demise clause, breaking from the traditional attitude on the basis of the legal nature of a time charter. Particularly, though the Supreme Court did not directly decide on the validity of the demise clause, the lower courts held that this clause was effective, because it did not fall within the clause les ening or relieving the carrier from the liability In 1997, however, this important change of attitude was put in doubt by the District Court in the Camfair25) in which the demise clause was held invalid. The court ruled that (i) Even if the time charterer or his agent signs with the wording “for the master’, it does not mean that the signature is a signature of the sub-agent of the shipowner or the demise charterer. As a result, the wording "for the master” does not have any legal meaning, (ii) Given the fact that the reverse side of the bill of lading sets that the time charterer has a right to claim an ocean freight and a lien, the time charterer is to be regarded as the carrier. (iii) As regards to the demise clause, this clause intends to shift the time charterer’s liability as the carrier for loss or damage of cargo to the shipowner, so that it is a special agreement unfavorable to the consignor, consignee or the third party 24) Article 704, Section 1 of the Commercial Code provides as follows: Where the charterer of a vessel uses the vessel in navigation for the purpose of engaging in commercial acts, as (0 matter relating to the use of the vessel, he has the same rights and duties as the shipowner. 25) (Phe District Court, 1997.90)Journal of Korea Trade holder of the bill of lading. Then this clause contravenes Article 15 of the International Carriage of Goods by Sea Act (1992). But, there is no reason to refute the liability of the shipowner who voluntarily assumes a carrier’s contractual liability. The shipowner is therefore liable for the loss of the cargo as a carrier together with the time charterer. ‘The Camfair ruling suggests that whomever has a right to collect an ocean freight plays a key role in identifying the carrier. Also, under this ruling, the demise clause has no effect to discharge the time charterer from the carrier's liability but has the effect to assume liability together with the shipowner. As a result, whether or not the demise clause will be construed to be valid remains one of the heated controversies in Japanese maritime law. 2. Common Law Countries 1) English Decision In English law, where the bill of lading is signed by the master, the presumption is that it takes effect as a contract with the employer of the master25) Moreover, even when the bill of lading is signed by the time charterer or his agent for and on behalf of the master, the carrier may still be the shipowner because the time charterer generally has an authority to sign the bill of lading so as to bind the shipowner.?? Indeed, Leggatt, L.J., concluded in the Rewia®) that the bill of lading signed by the time charterer’s agent for the master could not be the time charterer’s bill, unless the contract was made with the time charterer alone and the person signing has the authority to sign and does sign on behalf of the time charterer and not the shipowner. However, this approach can be displaced by clear indications elsewhere in the bill of lading, e.g. by the inclusion of an identity of carrier clause that identifies the carrier as of a regular liner service, neither of which is the one of two named joint operator 26) Turner v Haji Goolam [1904] A.C. 826; Wehner v Dene (1905) 2 K.B, 92.; Limerick v Coker [1916] 33 TLR, 108; See Michael Wilford et al., (1995), Time Charter, Lloyd's of London Press Lid, p33. 21) Tillmans v Knutsford [1908] A.C. 406; Wilston vs Andrew Weir (1925) 22 L1.LRepS2l: The Berkshire [1974] 1 Lloyd's Rep.85; ‘The Vikfrost [1980] 1 Lloyd's Repi60.; Kaleej International » Guif Shipping Lines (1986) 6 N.S.W.LR. 569(C.A) 28) [1981] 2 Lloyd's Rep. 325(C.A.) — 156 -‘A Comparative Analysis on the Identification of the Bill of Lading Carrier shipowner or disponent owner, or by unequivocal statements on the face of the bill of lading that a named party other than the shipowner or the disponent owner as the carrie 190) ‘Traditionally, English courts recognized the effect of the demise clause. In the Berkshire!” Brandon J. found that the shipowner was alone responsible, because the contract contained in or was evidenced by the bill of lading purported it to be a contract with the shipper. He finally ruled that the consignees could sue the shipowner under the time charterer’s bill of lading for the master, This case remained an authoritative decision concerning the effect of the demise clause) In March 2003, however, the House of Lords overruled the previous decisions in The Starsin’3). In October 1995, the vessel, MV. "The Starsin’, was time chartered out by the shipowner. In November and December, 1995, the vessel loaded consignments of plywood and timber from three ports in Malaysia for discharge in Antwerp and Avonmouth, in the U.K. On arrival, widespread damage to the cargo by wetting was found. By the time of the proceedings, the time charterer had become insolvent. The front side of the bill of lading contained the name and emblem of the time charterer. The bill of lading was signed by the port agent “as agent for the time charterer as carrier”. The reverse side of bill also contained both the identity of carrier clause and the demise clause. The cargo 29) The Venezuela [198] | Lloyd's Rep. 398, 30) The Hector {1988] 2 Liovd’s Rep. 287. 31) The Berkshire (1974] 1 Lloyd's Rep.185. 32) See NGO Chew Hong Edible Oil Pte. Ltd u. Scindia Steam Navigation Co. [19871 1 Lloyd's Repdda | R. Fletcher Lid v Sigurd Hagwik Alesjeselsteap [1980] } Lloyd's Rep. SHOICA) + Pacol Ltd v. Trade Line Ltd [1982] 1 Lloyd's Rep 456 3 Fetim BY. v Oceanspeed Shipping (1999) 1 Lloyd's Rep6l2. ; However, the commercial court decided against an effect to the identity of carrier clause in the Hector. Rix J held that the typed stipulation of the charterer as carrier on the face of the bill must be regarded as superseding the standard identity. of carrier clause on the back. ‘The vessel, MV. “Heetor’, was time chartered to U.S. Express Line on terms that the master was to authorize the time chartercrs, to sign the Dill of lading on their behalf in accordance with the Mate’s Receipts. He considered that the bill of lading should be read in light of all its terms and also by reference to the surrounding circumstances. He concluded that the shipowners were not a party (0 the bill of lading as it was clearly intended that the bill would be issued and signed on the charterer's behalf, See Sunrise Maritime Ine. v Uvisco Ltd(The Hetor) [1988] 2 Lioyd’s Rep 33) Hombury Houtimport RAs Aarosin Private [tel and. Others” Liowd’s Rep. 571 The Srarsen”) 11Journal of Korea Trade claimant argued that the shipowner was in breach of the bill of lading contract, while the shipowner pleaded that the contractual carrier under the bill of lading was the time charterer. In 2000, Colman J. in the Queen’s Bench Division held that the bill of lading was the time charterer's bill34 After the following year, the Court of Appeals ruled that the description of the time charterer as “carrier” in the signature box must yield to the identity of carrier clause.) However, the House of Lords finally and unanimously held that: ‘The problem as to who is the carrier must be approached objectively in the vay in which a reasonable person versed in the shipping trade. With due consideration of the speed at which international trade is transacted, there is little time for examining the impact of barely legible printed conditions at the time of the issue of the bill of lading, A reasonable reader of the bill of lading will know that it is "addressed not only to the s of third parties including banks which have issued the letter of credit". By virtue of Article 23(a)(v) of Ul All Lords, therefore, agreed to adopt the business approach as the mercantile view and shipper and consignee named on the bill but to a potentially wide clas P86) banks are not required to examine small print at the back of the bill of lading. placed more importance on the face of bill of lading than the barely legible tiny printed wording on the reverse side of bill of lading, because this approach is in line with bank business practices. ‘This decision has two important implications for the carriage of goods by sea?) First, 34) [2000] 1 Lloyd's Reps. 5) [2001] 1 Lloyd's Rep.437. There was strong opinion against the Court of Appeals decision and it was predicted that the House of Lords might overtum it, See Steven Gee, (2001), “Construing Contracts with Mistakes in Them.” Lloyd's Maritime and Commercial Law Quarterly, pp-214-2i 36) Article 23 (al(v), Marine/Ocean Bill of Lading a. If a Credit calls for a bill of lading covering port-to-port shipment, banks will, unless otherwise stipulated in the Credit, accept the document, however named, which: v) all of the terms and conditions of carriage, or some of such terms and conditions by reference to a source or document other than the bill of lading(short fornvblank back bill of lading), banks will not examine the contents of such terms and conditions, and 37) ‘The American Club, (2008), “Bill of Lading : Placing Commonsense above Principle, Currents, Vol. 17, pp.10-11. : Miranda Karali and Charles Smith, (2003), "Tdentity of Carrier Conundrum finally resolved,” BLG Shipping and International Trade Notes, Barlow Lyde & Gilbert, p2 : Ince & Co, (2008), "Carrier's bills or owner’s bills, and who has title to sue in 8 -‘A Comparative Analysis on the Identification of the Bill of Lading Carrier it seems that greater emphasis may now be placed by the courts on the wording on the front of the bill of lading for the purposes of identifying the carrier. The manner and style of the words used in the signature box will significantly influence any decision as to whom is the contracting party with the shipper. The demise clause on the back of the bill of lading will only be considered if these words on the front of the bill are not sufficiently clear. Second, the decision makes commercial sense and is designed for the interests and practices of international trade. The court did not accept that a shipper would expect to have to resort to the detailed conditions on the reverse side of the bill so as to discover the identity of his counter party, when the bill of lading contained an clear statement as to the identity of the carrier on its face. 2) American Decision ‘American law pays much attention to the signature on the bill of lading under the law of agency. The bill of lading signed by the master on behalf of the shipowner is evidence of a contract between the shipowner and the holder of the bill,3® while the time charterer is liable as the carrier under the bill of lading issued on its behal.39) Nevertheless, unlike English law, the bill of lading signed by the time charterer for the master is the time charterer’s bill, unless the master or the shipowner actually clothed the time charterer with the apparent authority to bind the shipowner to the bill of lading as a contracting party. respect of progressive damage to cargo - The House of Lord adopts a common sense approach’, Shipping law update, Vol.10, pp2-3. 38) Aljassim v The South Star, 323 F.SUPP. 918, 922, 1971 AMC 1703, 1707; Gans S.S. Line v Wilhelmsen, 275 F. 254, 262-263 (2nd Cir. 1921) 39) Mente & Co v Isthmian SS. Co.(The Quarrington Cour), 36 F.Supp. 278, 1940 AMC 1546; Glynwed Steels Ltd. v Great Lakes and European Lines Inc. 1979 AMC 1200(N.D. Tl. 1978) 40) Yeramex Int'l v The Tendo, $95 F.2d 913.944, 1979 AMC 1282,12834th Cir, 1979; Demsey & Association v The Sea Star. 461 F.2d 1002nd Cir. 1972) Ross Industries Inc. v The Gretke Oldendorff, 483 F Supp. 195. 1980 AMC 1397(8.D. Tex. 1980); Excel Shipping Corp. v Seatrain Int'l, 584 F Supp, 734, 1986 AMC 1587(E.D.N.Y 1984); Pacific Employers Inc. Co. v The Gloria, 767 F 24 245th Cir. 1985); Commercial Metals v The Luckyman, 1994 AMC 6T3ED. Pa, 196)Joumal of Korea Trade ‘The New York Produce Exchange form grants the time charterer the right to is the bills of lading and requires that the master signs them as presented. Under American law, in signing the bills of lading presented by the time charterer, the master may do so strictly as an agent for the time charterer rather than as an agent for the shipowner as was traditionally the case under general maritime law. Thus, the master’s signature on the charterer’s bill of lading may be binding on the time charterer, In Yaramex Int'l v. The Tendo,4)) it was held that: ‘The shipowner Was not liable in personam as a contracting party where the charterer had no actual authority to bind the shipowner to the bill of lading and no apparent authority existed to bind the shipowner, because neither the handling of the cargo nor the terms of the bill of lading could have misled the shipper or other third parties to believe that the shipowner was a party to the charterer’s bill of lading which was issued for the master. Turing to the demise clause, the general position appears to be that American authorities are against the validity of the demise clause. In Epstein v, United States.) the Southem District of New York decided that the demise clause was obviously a fraud on the shipper and conveyed a false warranty of authority to contract. This constituted a clear violation of section 3(8) of the U.S. COGSA. Also, in Blanchard Lumber v. S. S. Anthony II) the demise clause was held invalid with respect to the charterer under ‘The Gloria, 767 F.2d 225th Cir. 1985); Commercial Metals v The Luckyman, 191 AMC 673(E.D. Pa, 1998) 41) 595 F.2d 943944, 1979 AMC 1282,12R3C4th Cir. 1979), ‘The court based it's ruling on the concept of the master “wearing two hats" or performs dual agency in performance of his duties under the charter. See Michael Wilford et al, supra note 22, 317. 42) 86 F.Supp 740, 1949 AMC 1598 143) 259 F.Supp. 857, 1967, AMC 103. ; R. W. Pritchett, (1980), "The Demise Clause in American Courts.” Lloyd's Maritime and Commercial Law Quarterly, pp:387-34; Meanwhile, Section 1 of the Harter Act provides that “it shall not be lawful for the manager, agent, master, or owner of any vessel transporting merchandise or property from or between ports of the United States and foreign ports to insert in any bill of lading or shipping document any clause, covenant, or agreement whereby it, he, or they shall be relieved from liability for loss or damage arising from negligence, fault, or failure in proper loading, stowage, custody, care, or proper delivery of any and all lawful merchandise or property committed to its or their charge. Any and all words or clauses of such importance inserted in bills of lading or shipping receipts shall be null and void and of no effect.” ‘This clause is thus similar to the article 3(8) of the Hague Rules and the Hague/Visby Rules, the section 3(8) of the US. ~ 160 -A Comparative Analysis on the Identification of the Bill of Lading Carrier section 1 of the Harter Act, More recently, the Fifth Circuit in Thyssen Steel v. M/V Kavo Yerakas“) reconfirmed that the demise clause was invalid under section 3(8) of U.S COGSA as attempt to avoid or lessen the carrier's liability. ‘The normal rule in Common law is that only one party is Tiable as the carrier under the individual contract. However, in a case not involving the demise clause, the American courts held that there may be more than one COGSA carrier in a carriage of goods by sea contract. On this basis, the courts held one or more charterers to be the carriers, either alone or jointly with the shipowner, even where they had no involvement with the bill of lading! Particularly, in Joo Seng Hong Kong Co. v. S.S. Unibulkfir.! the Southern Distreit of New York held : ‘The statutory language of COGSA itself supports a broad definition of the term “carrier”, The statute seems to have been deliberately drawn so as not to limit the term of a party to the bill of lading or contract of carriage. The liability section in particular wolved in the shipment and handling of the goods. A charterer of a vessel certainly seems to be encompassed appears broad enough to include any number of different parties within the statutory term, and it would also seem to fit squarely within the common usage of the term “carrier”... The practical results of treating all charterers and owners as carriers would be consistent with COGSA's purpose of alleviating the Congressionally perceived imbalance of bargaining power between carriers and cargo interests. COGSA, rendering null and void and of no effect any clause, covenant, or agreement in a contract of carriage relieving or lessening, the liability of the carier otherwise than as: permitted by the said Rules or the US. COGSA. 4A) 50 F.3d.1349, 1995 AMC 231765th Cir.1995); ‘The traditional view admitting the validity of such clauses has been strongly criticized by three arguments. First, the demise clause contradicts. the appearance of the time charterer’s name at the head of the bill of lading, Second, the time charter ordinarily carries out many of the obligatory responsibilities of the carrier under the Hague/Visby Rules, Third, article 3t8) of the Hague/Visby Rules prohibits non-responsibility clause. See William Tetley, (1999), "The Demise of the Demise Clause?” MeGill Law Journal, Vol4, p81 -A12. 45) 483 FSupp43(S.D.N.V.1979 ; Hyundai_v, Hull Insurance Proceeds of M/V Valea, 800 Fysupp.124, 1988, AMC 4H: Samsung America v. M/T Fort Producer, 798 V.Supp.181, AMC QUSDNY, 1992) ; TradeArbed v. MLV’ Agia Sophia, 1987 AMC 2X38D.N.J. 1997) + Duferco Steel, Inc. MV Festivity, 1999 AMC 1186(5.D.N.¥.1998): William ‘Tetley, (1988), Marine Cargo Claim, ard edition, BLAIS, pp.242-243: Thomas J. Schoenbaum, (1994), Admiralty and Maritime Law, West Group, pp.186-187, 46) 483 FSupp4'S.D.NY.1979)Journal of Korea Trade ‘The plural carrier approach has been strongly supported by the joint venture approach in which the contract of carriage can be characterized as the joint venture between the shipowner and the time charterer) Under the joint venture approach, the shipowner shall remain responsible for the seaworthiness as well as the navigation of the vessel, while the time charterer shall perform all cargo handling including loading, stowing, lashing, and discharging at their risk and expense. Given the shared responsibilities, both the shipowner and the time charterer can perform the contract of carriage and any agreement with regards to apportionment of liability between the shipowner and the time charterer under the charterparty should not be binding on the innocent third party bill of lading holder.*® Then the shipowner and the time charterer should be held jointly and severally responsible as the carrier. 47) William ‘Tetley, supra note 44, p818i____, supra note 45, pp:249-250, 48) William ‘Tetley, (200), "Case Comment : The House of Lords Decision in The Starsin,’ Journal of Maritime Law and Commerce, Vol35, pp.122-123. ; Meanwhile, clause 27 of NYPE(1993) states that the cargo claim as being between the shipowner and the charterer and shall be settled in accordance with the Inter-Club New York Produce Exchange Agreement of February 1970, as amended May, 1984, or any subsequent modification or replacement thereof. ‘The recent Inter-Club New York Produce Exchange Agreement (1996) provides that cargo claims shall be apportioned as follows: fa) Claims in fact arising out of unseaworthiness and/or error or fault. in navigation or management of the vessel: 100% Owners, save where the shipowner proves that the unseaworthiness was caused by the loading, stowage, lashing, discharge or other handling of the cargo, in which case the claim shall be apportioned under sub-Clause (b). (b) Claims in fact arising out of the loading, stowage, lashing, discharge, storage or other handling of cargo: 100% Charterers, unless the words "and responsibility” are added in Clause 8 or there is a similar amendment making the Master responsible for cargo handling in which case: ‘50% Charterers, 50% Owners, save where the Charterer proves that the failure properly to load, stow, lash, discharge or handle the cargo was caused by the unseaworthiness of the vessel in which case: 100% Owners (©) Subject to (a) and (b) above, claims for shortage or overcarriage! 50% Charterers, 50% Owners, unless there is clear and irrefutable evidence that the claim arose out of pilferaye or act or neglect by one or the other (including their servants or sub-contractors) in which case that party shall then bear 100% of the claim, (d) All other cargo claims whatsoever (including claims for delay to cargo 50% Charterers , 50% Owners, unless there is clear and irrefutable evidence that the claim arose out of the act or neglect of the one or the other (including their servants or sub-contractors) in which case that party shall then bear 100% of the claim, — 162 -‘A Comparative Analysis on the Identification of the Bill of Lading Carrier 3. UNCITRAL Draft Instrument ‘As can be seen from the forgoing, the problem of identifying the carrier has not been resolved by the two principal international conventions that regulate the carriage of goods by sea, Therefore, recently, the Comite Maritime Intemational(hereinafter, CMI) and the United Nations Commission on International Trade Law(hereinafter, UNCITRAL) have set out the task of preparing a legislative instrument on controversial issues relating to the international carriage of goods including the carrier's definitions, the identity of carrier, and the liability of the performing or actual carrier. In December, 2001, after a CMI draft instrument was delivered to UNCITRAL, the draft was converted into the UNCITRAL Preliminary Draft Instrument on the Carriage of Goods by Sea in January, 2002. After going through various amendments, the most recent version of the draft instrument was released in September, 2005.5 Article (1)(d) of the draft instrument describes the carrier as a person that enters into a contract of carriage with a shipper. This definition follows the same principle as laid down in the Hague Rules: "the carrier is a contractual person”. Therefore, the carrier may have entered into the contract cither on its own behalf and in its own name or through an employee or agent acting on its behalf and in its name, In addition, Article (Lf) of the draft instrument draws a distinction between the carrier and the maritime performing party, who is the party that performs any of the carriers responsibilities during the period between the arrival of the goods at the port of loading and their departure from the port of discharge. This definition is similar to the actual carrier under the Hamburg mules, but it is clear and broad Particularly, by Article 21(1) of the draft instrument, if the carrier and one or more maritime performing parties are liable for the loss of, damage to, or delay in the delivery cof the goods, their liability is joint and several. Under the draft instrument, the time charterer who enters into « contract of carriage with the shipper can be considered the carrier, while the maritime performing party is the shipowner who actually performs the 39) Stuart, Beare (2002 Gh xoing", Liovd’s Maritime and Commercial Lav Quarterly, 308. bility regimes : Where we are, how we go there, and where we are 50) UNCETRAL (20059) "Draft convention on the carriage of goodslwholly or partly Iby seal” UN doe, ACNOWGAIAVP 5%, Available online from UNCITRAL website//www-uncitral org/en-endes htm,Joumal of Korea Trade carriage under the time charterer's orders and directions. In order to make it easier for the cargo claimant to identify the carrier, Article 38(1)(c) of the draft instrument provides that the transport document is to contain the name and address of the carrier. In addition, Article 39(1) expressly provides that a transport document must be signed by the carrier or person having authority from the carrier. Moreover, Article 39(3) states that if the contract particulars fail to identify the carrier but indicate that the goods have been loaded on board a named vessel, then the registered owner of the vessel is presumed to be the carrier. The registered owner can defeat this presumption if it proves that the ship was under a bareboat charter at the time of the carriage which transfers contractual responsibility for the carriage of the goods to an identified bareboat charterer. This provision attempts to deal with the identity of carrier problem, if the name and address of the carrier are not stated in the contract particulars as required by Article 3811)(€)5!) Differently from the Hague Rules and the Hamburg Rules, the draft instrument can mect the world needs for modem, uniform law on the identity of carrier problem. V. Conclusion ‘The identity of the bill of lading carrier under the time charter is one of the controversial issues in the law regulating to carriage of goods by sea. As expected, in the absence of uniformity of international maritime law on the identification of the bil of lading carrier, the comparative analysis of some national decisions shows that the court S often choose different approaches, even if the finding is the same. The cargo claimants charterer”. It is almost certain that the solution of the identity of carrer problem will be a are thus not sure whom they should sue - “the shipowner or the time legislative one, possibly through the widespread adoption of the international convention ‘on the carriage of goods that is being prepared by UNCITRAL. Until that time, the courts 51) Comite Maritime International (1999) "Issues of Transport Law", CMI News Letter No, pp2-3. ~ 164 =A Comparative Analysis on the Identification of the Bill of Lading Carrier have not only to adapt to finding the single cartier, but also to accommodate multiple causes of action both within and outside the Hague Rules regime. The bill of lading is a fundamental part of international trade system. It is not simply contract of carriage and a receipt for goods shipped, but it is also a document of title of third parties. As s 1¢ carrier based on the approaches such as the mixed to the goods, which is capable of being transferred to a wider cl a result, the identification of contr: theory, the law of agency, the demise clause can not be an appropriate solution. These approaches may hinder the negotiability of the bill of lading, because the third party holder of the bill of lading is requested to check on wha the legal relationship between the shipowner and the time charterer, whether or not the authority is duly given to the time charterer or its agent to sign the bill of lading, and whether or not there is a demise clause on the back of the bill of lading. In other words, it would be unreasonable and unfair to place the burden of investigating the carrier's identity on the cargo claimant. 7 standpoint, placing more importance on the carrier's name on the heading of the bill of The problem as to who is the carrier must be approached from a commer lading. Indeed, the time charterer’s name on the bill of lading’ ce implies that he is the cartier. Where the time charterer allows it’s name to appear in the heading of the bill of lading, it should be precluded from later denying that it is the carrier against the third party holder of bill of lading who in good faith has acted in reliance on that statement, Moreover, where the bill of lading carrier is the reputable time charterer, then lack of security is not a serious problem to the cargo claimant. However, in case of a weak financial condition of the time charterer, the cargo claimant would make no recovery. Therefore, the joint liability appro: fh or plural carrier approach should be applied when the bill of lading does not contain a clear statement as to the identity of the carrier on its face, and or when the carrier is insolvent, = 165Journal of Korea Trade References Bang, Hee-Seok and Lee, Won-Jeong (2002) "Approach to Validity of the Demise Clause over the Contracts for the Carriage of Goods by Sea", International Commerce, Vol.17 No.3, pp.G5-83. Beare, Stuart (2002), "Liability regimes ; Where we are, how we go there, and where we are going", Lloyd's Maritime and Commercial Law Quarterly. p08. Cooke, Julian et al. (1983) Voyage Charters. Comite Maritime Intemational (1999) "Issues of Transport Law”, CMI News Letter No.2, pp. Enonchong, Nelson (2003) "Contracting Carrier, Himalaya Clauses and Tort in the House of Lord ; ‘The Starsin", Lloyd's 311-316. Gee, Steven (2001) "Construing Contracts with Mistakes in Them’, Lioyd’s Maritime and Commercial Lav Quarterly, pp.214-218. Ivamy, E.R. Hardy (1987) Casebook of Shipping Law. (1989) Carriage of Goods By Sea Ince & Co (2003) "Carrier's bills or owner's bills, and who has title to sue in respect of Maritime and Commercial Law Quarterly, pp. progressive damage to cargo ~ The House of Lords adopts a common sense approach’, Shipping Law Update, Vol.10, pp.2-3. Karali, Miranda and Smith, Charles (2008) "Identity of Carrier : Conundrum finally resolved", BLG Shipping and International Trade Notes, Barlow Lyde & Gilbert, pp.l-3, Kim, In-Hyeon (2002) A Study on the Carriage of Goods by Sea Act. Margolis, Robert (1993) "Validity of the Demise Clause under the Japanese Law and the Consequences for Enforcement abroad of Claim under the Japanese Bills of Lading’, Lloyd's Maritime and Commercial Law Quarterly, pp.164-176. Pritchett, R. W. (1980) “The demise Clause in American Courts’, Lloyd's Maritime and M, Commercial Law Quarterly, pp.387- Satori, Kazuo (1998) "The Supreme Court Ruling in the Jasmine : Translation and ‘he JSE Bulletin, No:37, The Japan Shipping Exchange, pp.1-6. (2008) "The Starsin - Or the Beginning of the Demise of the Demise Comment’, — 166A Comparative Analysis on the Identification of the Bill of Lading Carrier Clause”, The JSE Bulletin, NoA?, The Japan Shipping Exchange, pp.14-21. Schoenbaum, Thomas J. (1994) Admiralty and Maritime Law. ‘Tetley, William (1988) Marine Cargo Claim ___ (1999) "The Demise of the Demise Clause?,” McGill Law Journal, Vol.44, pp.807-848, (2004) “Case Comment : The House of Lords Decision in The Starsin”, Journal of Maritime Law and Commerce, Vol.35, pp.121-139. ‘The American Club (2003) “Bill of Lading + Placing Commonsense above Principle”, Currents, Vol. 17, pp.10-11 ‘The Swedish Club (2004) "Bill of Lading", The Swedish Club Letter, Vol.1, pp. ‘Todd, Paul (1988) Contracts for the Carriage of Goods by Sea ______. (1998) Bills of Lading and Banker’s Documentatry Credits. UNCITRAL (20059) "Draft convention on the carriage of goods[wholly or partly] [by (UN doc. AYCN9/WG.II/WP.56), Wilford, Michael et al. (1995) Time Charter. Wilson, John F, (2001) Carriage of Goods by Sea. = 167 -