Academic literature on the topic 'Bills of lading issued by shipowners'

Chartering is an important part of the process of transporting goods by sea. Freight brokers or brokerage companies have been arranging communications between cargo owners and shipowners for charter party conditions discussion and approval. The communication facilities modernization, the computers usage, the Internet and artificial intelligence have significantly expanded of the freight broker possibilities. One of the most significant challenges of the modern freight market is the digital technologies using, including artificial intelligence and neural networks. Analysts' opinions on the possibility of replacing a broker with a digital resource based on artificial intelligence are different. Some admit this possibility in the future, while others believe that a complete rejection of human`s supervision is impossible. It is important that the freight market isn`t formally subject to legal or regulatory frameworks, and its activities are based on the traditions of the international maritime community, which facilitates the implementation of innovations. The authors have analysed the possibilities of nine specialised freight platforms currently offered on the digital resources market. These resourses are greatly facilitate and speed up the search and processing of information, but none of them can automate all stages of chartering. Less than half of them use elements of artificial intelligence, allowing to edit charters, generate invoices and support the bills of lading turneover. Presently, the artificial intelligence level does not allow to replace a broker; digital resources make it possible to organize a "virtual workplace" only. Chartering broker prepares a task for information retrieval and processing and generates decisions which is based on systematized information by himself. Further freight market development is possible after artificial intelligence (AI) next generation introducing ("strong" AI).

Resumen: Las controversias de carácter jurisdiccional son muy comunes en litigios derivados de la contratación marítima internacional y, en este contexto, la elección del foro es una cuestión capital. Tanto las cláusulas atributivas de jurisdicción y como las cláusulas de arbitraje son dos mecanismos diferentes que ayudan a garantizar la imparcialidad y la previsibilidad en la resolución de las controver­sias internacionales. A pesar de sus beneficios, en el contexto de los documentos de transporte marítimo internacional estas cláusulas pueden ser inconvenientes para las partes que se ven obligadas a litigar ante foros lejanos. La mayoría de los conocimientos de embarque contienen atributivas de jurisdicción que establecen que las partes deben acudir a determinado tribunal para resolver cualquier controversia que surja en relación con el contrato de transporte internacional. Sin embargo, cuando se emite un co-nocimiento de embarque bajo una cláusula de fletamento que incorpore expresamente la cláusula de arbitraje, las partes en el contrato de transporte incluidas en el conocimiento de embarque, pueden verse obligados a acudir al arbitraje. El art. 468 Ley de Navegación Marítima regula la validez formal de aquellas cláusulas de jurisdicción y arbitraje que prevean la sumisión de las partes a una jurisdicción extranjera o a un arbitraje en el extranjero e impone la negociación individual y separada de ambas cláusulas como requisito de validez.Palabras clave: Derecho internacional privado, cláusulas atributivas de jurisdicción, cláusulas de arbitraje, arbitraje marítimo, Ley de Navegación marítima de 2014.Abstract: Disputes about jurisdiction are very common in litigation arising from international maritime contracting. In this context the choice of forum is an important matter. Jurisdiction and ar­bitration clauses are two different mechanisms that help to ensure impartiality and predictability in international dispute resolution. Despite their benefits, in the context of international maritime transport documents these clauses can be inconvenient for parties that are forced to litigate many times before distant fora. Most bills of lading contain jurisdiction clauses providing that parties are to resolve any disputes arising in connection with the contract of carriage contained in the bill through litigation in the courts. Where a bill of lading is issued under a charter party, however, and where it expressly incor­porates the charter party’s arbitration clause into its terms, the parties to the contract of carriage con­tained in the bill of lading, including any transferees of the bill, may be obliged to refer their disputes to arbitration. Article 468 of the new Maritime Navigation Act regulates the formal validity of choice of court agreements and arbitration agreements establishing the submission to a foreign court or to an arbitration located abroad.Keywords: International Private Law, jurisdiction and arbitration clauses, maritime arbitration, Spa­nish Maritime Navigation Act 2014

The article is devoted to the study of the peculiarities of digitalization of international trade through the introduction of blockchain technology and the identification of issues that require legal regulation for the implementation of the relevant process in Ukraine. It is emphasized that digitalization of international trade through the introduction of blockchain technology opens up opportunities for optimization of administrative trade procedures and stimulation of foreign trade activity, in particular, it allows modernizing and optimizing the work of “single windows” (including certification and customs clearance); cross-border data exchange between government agencies or authorities and economic entities; payment transfer system, etc. In turn, the use of smart contracts, built on the appropriate technology, can automate the compliance of stakeholders with various contractual obligations; and data (in the blockchain) — is a stream of reliable information about past transactions, as they remain unchanged after entry. This provides greater transparency and the ability to trace the movement of a product or document throughout the supply chain with a high level of security and immutability, as well as eliminates double spending (in particular, by using the same digital documents as collateral for financing, which is a common source of fraud in international trade. At the same time, blockchain technology is only a tool on the way to optimizing administrative trade procedures and stimulating foreign economic activity and can be used only if there is appropriate legislation. In particular, the issues of determining the legal status of the blockchain (in particular, the terminology — “blockchain”, “smart contracts”) and blockchain-based applications need to be settled. Analysis of international experience proves the lack of unified approaches in this area. This actualizes the need to intensify work at the global international level to address the above issues. It is also advisable for Ukraine to join this process. For the sake of end-to-end digitalization of trade and limiting the possibility of potentially conflicting individual approaches that could lead to further disconnection and barriers to trade, harmonization of domestic legislation in accordance with existing international documents (in particular, UNCITRAL model laws) is becoming important. Digital trade agreements (e.g., the upcoming Digital Trade Agreement between Ukraine and the United Kingdom) are one of the tools that will help to intensify actions in this direction. In addition, among the issues that require regulation prior to the introduction of blockchain technology in international trade are the following: (1) the procedure for entering data (in particular, ensuring their accuracy and completeness) to be transmitted and exchanged on the blockchain; (2) protection of the transmitted data, (3) responsibility for data entry and processing, as well as the legal algorithm for their correction in case of errors (in particular, it should be clearly defined whether it is possible to make changes to the code underlying the blockchain to correct errors and, if so, who has the right to do it), (4) dispute resolution procedure; (5) mutual recognition of documents/certificates issued (this will ensure that the algorithms used work accurately with the data entered and comply with specific (international and national) rules), etc., as well as recognition of electronic signatures and electronic documents (in particular, transfer documents, bills of lading, promissory notes, warehouse receipts, etc. On this basis, it is considered expedient not to adopt a separate legal act like the Illinois State Law “On the Implementation of Blockchain Technology”, but to modernize the existing laws of Ukraine: the Law of Ukraine “On Electronic Commerce”, the Law of Ukraine “On Electronic Documents and Electronic Document Management”, etc. These are the directions of further research. It is considered appropriate at the legislative level to allow the use of smart contracts, records and signatures protected by blockchain in the field of trade and to use the method of analogy of the law in order to extend the legal regime of electronic contracts and signatures to them, which is reflected in the law-making of certain foreign countries (in particular, the United States (New York State). It is proposed to develop and adopt legislation on the digitalization of economic policy in general and foreign economic policy in particular, taking into account the principles of functional equivalence and technological neutrality. This will protect domestic legislation from the need for constant amendments to take into account the emergence of new technologies.

The Privy Council was faced with the following set of facts: Shipowners chartered their vessel to time charterers. The vessel was subchartered to shippers for the carriage of a cargo from Indonesia to China. The time charterers issued a bill of lading which contained a so-called Himalaya clause, i.e. a clause which purported to confer on subcontractors the benefit of 'all exceptions, limitations, provision, conditions and liberties benefitting the carrier. It also contained a clause conferring exclusive jurisdiction on the Indonesian courts. After discharge of the cargo, the cargo owners issued a writ against the vessel in Hong Kong claiming that the cargo was damaged on delivery. The shipowners sought to rely on the jurisdiction clause, as being a provision within the meaning of the Himalaya clause. In the view of the Hong Kong Court of Appeal, the shipowners were not entitled to rely on the clause because they were not parties to the bill of lading. Nor had there been a bailment on terms which included the jurisdiction clause. The shipowners appealed to the Privy council, which dismissed the appeal (Lord Goff of Chieveley giving the judgment of the Board). It traced the development of Himalaya clauses as a device to accommodate various situations arising in the context of carriage of goods by sea where there was a commercial expectation that the benefit of certain terms of the contract of carriage should be made available to parties involved in the adventure who were not parties to the contract - primarily stevedores, but in some cases also shipowners relying on terms in charterers' bills of lading to exempt them from possible liability to cargo owners and consignees. The theoretical basis for giving effect to such clauses remained problematic (although they were currently construed as bilateral contracts arrived at through the agency of the carrier). It was not apparent that a jurisdiction clause should be included within the list of clauses from which a subcontractor should be allowed to benefit. 'Such a clause can be distinguished from terms such as exceptions and limitations in that it does not benefit only one party, but embodies a mutual agreement under which both parties agree with each other as to the relevant jurisdiction for the resolution of disputes. It is therefore a clause which creates mutual rights and obligations.' While the Himalaya clause in the contract in question referred to subcontractors enjoying the benefit of a 'provision' for the benefit of the carrier, this term must be interpreted eadem generis with exceptions and limitations. The function of a Himalaya clause was 'to prevent cargo owners from avoiding the effect of contractual defences available to the carrier by suing in tort persons who perform the contractual services on the carrier's behalf. To make available to such a person the benefit of an exclusive jurisdiction clause in the bill of lading contract does not contribute to the solution of that problem.' In addition, the purpose of a jurisdiction clause is usually to confer jurisdiction on a court in the place where the carrier carries on business. It is purely fortuitous if that court is also a convenient place for a subcontractor to litigate. Both the terms of the Himalaya clause and the policy it pursued therefore indicated that it was not intended to include the jurisdiction clause. The following case note contrasts the legal reasoning employed in Belgium in similar situations (E. Dirix).