Study on the Doctrine of Privity in Contract of Carriage of Goods by Sea
|School||Shanghai Maritime University|
|Keywords||privity of contract lawful holder of bill of lading shipper consignor Himalaya clause actual carrier|
"Privity of contract" (called "privity of debt" in civil law system) is the corner stone of contract rule and system, which underlies wide recognition and respect of "autonomy" and "freedom of contract". What characterizes contracts of carriage of goods by sea is they involve one or even many third parties. Therefore, strict application of "doctrine of privity" in this field will bring enormous conflicts and inconveniences in business and shipping practices. Hurdles posed by "privity" are featured by: ① third parties of contacts are unable to bring actions of contract in their own name so as to defend their contract rights; ② third parties of contacts are precluded from such immunities, limitation of liabilities, etc. provided in contracts.With fast growth of international trade and carriage of goods by sea, bills of lading are more frequently transferred and more parties are involved in such transportation, and the number of third parties such as holders of bills of lading, consignors and participating transportation providers will multiply. Protection of their interests becomes ever important, otherwise, the application of laws will be incompatible with business activities, which will hamper development of carriage of goods by sea and international trade.Under such setting, different countries in the world start to tackle the hurdles of "privity of contract" via case judgments and legislation.This paper examines the impact of "privity of contract" on contracts of carriage of goods by sea based on analysis of Act of Carriage of Goods by Sea and cases in the UK. Comparative analysis is used to explore solutions from cases and legislation from perspective of legal logic and business practices. Third parties such as holders, consignors, participating transportation providers are fully examined while value reflected in precedents and purpose of legislation are analyzed. The examination covers not only legal concepts, but also extends to protection of interests, liabilities with a solution proposed conclusively.The paper is divided into 3 parts and 4 chapters, specifically:Part 1 (Chapter 1): brief basics of "privity of contract" and present landmark precedents in its evolution, summarize the relationship between "doctrine of privity" and consideration and unfair circumstances under this doctrine.Part 2 (Chapter 2): illustrate two hurdles of "privity of contract" in contracts of carriage of goods by sea and examine the end of "privity" and conclude that it will be sound to bestow directly third parties of carriage of goods by sea entitlements together with certain obligations while it is not opined to preclude "doctrine of privity".Part 3 (Chapter 3 and 4):Chapter 3: focus on "contractual rights of action by third parties", one of the hurdles above mentioned, by exploring precedents and Acts of the UK, Chinese Maritime Code, three Conventions, CMI/UNCITRAL Draft Instrument on Transport Law; (action) rights and liabilities of "holders of bills of lading" and "shippers/consignors" are discussed; proposal of amendments to Chinese Maritime Code is presented.Chapter 4: focus on "contractual defenses by third parties", one of the hurdles above mentioned by exploring precedents and Acts of the UK, Chinese Maritime Code, three Conventions, CMI/UNCITRAL Draft Instrument on Transport Law; "Himalaya clauses" and "actual carriers" are discussed specifically and proposal of amendments to Chinese Maritime Code is also presented.Above summary acts as a brief introduction of issues, methods, perspectives and supports applied in this paper. Ideas expressed are intended to solicit broad discussion of this field so as to contribute to development of Chinese Maritime Code.