rules. The 1946 NYPE form also specifies that the ship must have a “donkey boiler”,
and one of the options for describing the ship’s fuel consumption is in terms of “tons
of best Welsh coal”. No doubt brokers using the 1946 version of the form routinely
delete the references to donkey boilers and Welsh coal, but do they routinely delete
the reference to the York-Antwerp Rules 1924? Why would anyone choose to put
themselves in the position of having to exercise such vigilance over the anachronistic
details of the form? Unthinking conservatism seems to be the only possible explanation. Whatever the explanation, chartering practice seems to be not exactly
keeping up with the times, to put it mildly.
4 The Both-to-Blame Collision Clause
The Both-to Blame Collision Clause is a common feature of standard form bills of
lading
41 and also of time and voyage charterparties. BIMCO has published
recommended wording for a Both-to Blame Collision Clause,
42 and such a clause
appears in the most recently published versions of the generic BIMCO forms for bills
of lading, sea waybills
43 and charterparties.
44 Some P. & I. Clubs recommend that
their members insert the clause into their carriage documents.
45 Standard cargo
insurance policies, such as the Institute Cargo Clauses (A), provide cargo-owners
with cover against the risk of being required to pay carriers under the clause.
46 In
short, the clause is ubiquitous. It seems that no-one is prepared to put to sea without
one in their contractual documentation. What does it do, though? Is it really
necessary? Or is it just an atavistic remnant of times long past?
41 All five of the largest container lines have such a clause in their bills of lading. See, for example,
cl. 23 of the Maersk Line bill of lading (available at https://terms.maerskline.com/carriage), which
incorporates the BIMCO clause (see note 42) by reference; cl. 21 of the MSC bill of lading
(available at https://www.msc.com/getattachment/a2c61e0a-90d9-4c80-89aa-686e3464e62a/
636355601931487641); cl. 15 of the CMA CGM bill of lading (available at https://www.cmacgm.com/static/eCommerce/Attachments/CMACGM-Terms-and-Conditions-2016-08.pdf);
cl. 24 of the COSCO bill of lading (available at http://lines.coscoshipping.com/lines_resource/pdf/
coscon_tidan_cn.pdf), which incorporates the BIMCO clause (see note 42) by reference; cl. 23 of
the Hapag-Lloyd bill of lading (available at https://www.hapag-lloyd.com/content/dam/website/
downloads/pdf/Hapag-Lloyd_Bill_of_Lading_Terms_and_Conditions.pdf) which incorporates the
BIMCO clause (see note 42) by reference.
42 The clause is available from BIMCO’s website at: https://www.bimco.org/contracts-and-clauses/
bimco-clauses. It also appears in BIMCO’s standard forms: see note 43 below.
43 See BIMCO’s Conlinebill 2016, cl. 13; Combinconbill 2016, cl. 24; Linewaybill 2016, cl. 24;
Combiconwaybill 2016, cl. 24.
44 See Gencon 94, cl. 11; NYPE 2015, cl. 33(b).
45 See, for example, North of England Protecting and Indemnity Association Ltd, Recommended
Clauses 2016-2017, p. 1 (available at http://www.nepia.com/media/410235/NORTHRecommended-Clauses-2016-17-.PDF).
46 Institute Cargo Clauses (A), cl. 3.
When Was the Last Time You Were Restrained by a Prince? Conservatism. . .
161
and one of the options for describing the ship’s fuel consumption is in terms of “tons
of best Welsh coal”. No doubt brokers using the 1946 version of the form routinely
delete the references to donkey boilers and Welsh coal, but do they routinely delete
the reference to the York-Antwerp Rules 1924? Why would anyone choose to put
themselves in the position of having to exercise such vigilance over the anachronistic
details of the form? Unthinking conservatism seems to be the only possible explanation. Whatever the explanation, chartering practice seems to be not exactly
keeping up with the times, to put it mildly.
4 The Both-to-Blame Collision Clause
The Both-to Blame Collision Clause is a common feature of standard form bills of
lading
41 and also of time and voyage charterparties. BIMCO has published
recommended wording for a Both-to Blame Collision Clause,
42 and such a clause
appears in the most recently published versions of the generic BIMCO forms for bills
of lading, sea waybills
43 and charterparties.
44 Some P. & I. Clubs recommend that
their members insert the clause into their carriage documents.
45 Standard cargo
insurance policies, such as the Institute Cargo Clauses (A), provide cargo-owners
with cover against the risk of being required to pay carriers under the clause.
46 In
short, the clause is ubiquitous. It seems that no-one is prepared to put to sea without
one in their contractual documentation. What does it do, though? Is it really
necessary? Or is it just an atavistic remnant of times long past?
41 All five of the largest container lines have such a clause in their bills of lading. See, for example,
cl. 23 of the Maersk Line bill of lading (available at https://terms.maerskline.com/carriage), which
incorporates the BIMCO clause (see note 42) by reference; cl. 21 of the MSC bill of lading
(available at https://www.msc.com/getattachment/a2c61e0a-90d9-4c80-89aa-686e3464e62a/
636355601931487641); cl. 15 of the CMA CGM bill of lading (available at https://www.cmacgm.com/static/eCommerce/Attachments/CMACGM-Terms-and-Conditions-2016-08.pdf);
cl. 24 of the COSCO bill of lading (available at http://lines.coscoshipping.com/lines_resource/pdf/
coscon_tidan_cn.pdf), which incorporates the BIMCO clause (see note 42) by reference; cl. 23 of
the Hapag-Lloyd bill of lading (available at https://www.hapag-lloyd.com/content/dam/website/
downloads/pdf/Hapag-Lloyd_Bill_of_Lading_Terms_and_Conditions.pdf) which incorporates the
BIMCO clause (see note 42) by reference.
42 The clause is available from BIMCO’s website at: https://www.bimco.org/contracts-and-clauses/
bimco-clauses. It also appears in BIMCO’s standard forms: see note 43 below.
43 See BIMCO’s Conlinebill 2016, cl. 13; Combinconbill 2016, cl. 24; Linewaybill 2016, cl. 24;
Combiconwaybill 2016, cl. 24.
44 See Gencon 94, cl. 11; NYPE 2015, cl. 33(b).
45 See, for example, North of England Protecting and Indemnity Association Ltd, Recommended
Clauses 2016-2017, p. 1 (available at http://www.nepia.com/media/410235/NORTHRecommended-Clauses-2016-17-.PDF).
46 Institute Cargo Clauses (A), cl. 3.
When Was the Last Time You Were Restrained by a Prince? Conservatism. . .
161