whereas the Reliable Transfer principle of U.S. law
59 requires only comparison of
degrees of fault.
60
Thirdly, if the carrier of Ship A were to try to enforce the Both-to-Blame Collision
Clause to recover an indemnity from a cargo-owner or its insurer in a “private
carriage” case under a charterparty governed by U.S. law, the case would most
probably go to arbitration in New York, rather than to court. The Society of Maritime
Arbitrators, based in New York, publishes awards made under its aegis. The SMA
was established in 1963; there are no published awards of SMA arbitrations in which
a shipowner has sought to enforce a Both-to-Blame Collision Clause in a
charterparty. In short, there seems to be very little evidence that shipowners are
even trying to rely on the clause in the United States.
Fourthly (and this may explain the absence of SMA awards), many charterparties
incorporate US COGSA by means of a Clause Paramount when the charterparty is
for trade to or from the United States.
61 If COGSA applies to the charterparty itself,
as well as to bills of lading issued under it (which is what the Clause Paramount in a
charterparty usually says),
62 then the incorporated provisions of COGSA should
strike down the Both-to-Blame Collision Clause in that charterparty, just as much as
they do in a bill of lading or sea waybill.
63
In summary, the only possible scope for application for the Both-to-Blame
Collision Clause in the United States is if: (1) the contract containing the clause
59 See above, note 53.
60 Otal Investments, 494 F.3d at 62–63. For a comparison of the Convention-based and
U.S. methods of allocation of responsibility, see Healy (2001), p. 993; Forbes and Knoll (2017),
pp. 977, 986–989.
61 See, for example, cl. 20(b) of the Asbatankvoy tanker voyage charter, which provides that: “The
carriage of cargo under this Charter Party and under all Bills of Lading issued for the cargo shall be
subject to” US COGSA (among other things).
62 See also, for example, cl. 33(a) of NYPE 2015, which provides that US COGSA “shall be deemed
to form part of this Charter Party and all Bills of Lading or waybills issued under this Charter Party.”
Incorporating COGSA into a time charter is essentially meaningless, another example of the
unthinking way in which shipping contracts adhere atavistically to established practices. Sensibly,
the 1981 version of the NYPE form did not purport to incorporate COGSA into the charter itself—
see Pritchett (1983), p. 69—but that feature of the form seems to have been dropped from later
versions.
63 Courts in the U.S. have come to exactly this conclusion about the New Jason Clause, which
provides that a shipowner may recover a general average contribution from cargo if it is guilty of
fault that would be protected from liability “by statute or contract or otherwise”. The U.S. Supreme
Court held in The Jason, 225 U.S. 32; 32 S.Ct. 560 (1912) that a contract for the carriage of goods
by sea may validly stipulate that the shipowner is entitled to a general average contribution if it is
relieved by statute of responsibility for the negligence of the master and crew that gave rise to the
general average event. The “New Jason Clause” expanded “by statute” to “by statute or contract or
otherwise” but it, too, has no effect if the “private carriage” contract in question incorporates
COGSA by reference, because COGSA prevents the carrier from contracting out of liability for its
own fault: see Gemini Navigation, Inc. v. Philipp Bros Division of Minerals & Chemicals Philipp
Corp., 499 F.2d 745 (2d Cir. 1974); Louis Dreyfus Corp. v. 27,946 Long Tons of Corn, 830 F.2d
1321 (5th Cir. 1987).
When Was the Last Time You Were Restrained by a Prince? Conservatism. . .
165
59 requires only comparison of
degrees of fault.
60
Thirdly, if the carrier of Ship A were to try to enforce the Both-to-Blame Collision
Clause to recover an indemnity from a cargo-owner or its insurer in a “private
carriage” case under a charterparty governed by U.S. law, the case would most
probably go to arbitration in New York, rather than to court. The Society of Maritime
Arbitrators, based in New York, publishes awards made under its aegis. The SMA
was established in 1963; there are no published awards of SMA arbitrations in which
a shipowner has sought to enforce a Both-to-Blame Collision Clause in a
charterparty. In short, there seems to be very little evidence that shipowners are
even trying to rely on the clause in the United States.
Fourthly (and this may explain the absence of SMA awards), many charterparties
incorporate US COGSA by means of a Clause Paramount when the charterparty is
for trade to or from the United States.
61 If COGSA applies to the charterparty itself,
as well as to bills of lading issued under it (which is what the Clause Paramount in a
charterparty usually says),
62 then the incorporated provisions of COGSA should
strike down the Both-to-Blame Collision Clause in that charterparty, just as much as
they do in a bill of lading or sea waybill.
63
In summary, the only possible scope for application for the Both-to-Blame
Collision Clause in the United States is if: (1) the contract containing the clause
59 See above, note 53.
60 Otal Investments, 494 F.3d at 62–63. For a comparison of the Convention-based and
U.S. methods of allocation of responsibility, see Healy (2001), p. 993; Forbes and Knoll (2017),
pp. 977, 986–989.
61 See, for example, cl. 20(b) of the Asbatankvoy tanker voyage charter, which provides that: “The
carriage of cargo under this Charter Party and under all Bills of Lading issued for the cargo shall be
subject to” US COGSA (among other things).
62 See also, for example, cl. 33(a) of NYPE 2015, which provides that US COGSA “shall be deemed
to form part of this Charter Party and all Bills of Lading or waybills issued under this Charter Party.”
Incorporating COGSA into a time charter is essentially meaningless, another example of the
unthinking way in which shipping contracts adhere atavistically to established practices. Sensibly,
the 1981 version of the NYPE form did not purport to incorporate COGSA into the charter itself—
see Pritchett (1983), p. 69—but that feature of the form seems to have been dropped from later
versions.
63 Courts in the U.S. have come to exactly this conclusion about the New Jason Clause, which
provides that a shipowner may recover a general average contribution from cargo if it is guilty of
fault that would be protected from liability “by statute or contract or otherwise”. The U.S. Supreme
Court held in The Jason, 225 U.S. 32; 32 S.Ct. 560 (1912) that a contract for the carriage of goods
by sea may validly stipulate that the shipowner is entitled to a general average contribution if it is
relieved by statute of responsibility for the negligence of the master and crew that gave rise to the
general average event. The “New Jason Clause” expanded “by statute” to “by statute or contract or
otherwise” but it, too, has no effect if the “private carriage” contract in question incorporates
COGSA by reference, because COGSA prevents the carrier from contracting out of liability for its
own fault: see Gemini Navigation, Inc. v. Philipp Bros Division of Minerals & Chemicals Philipp
Corp., 499 F.2d 745 (2d Cir. 1974); Louis Dreyfus Corp. v. 27,946 Long Tons of Corn, 830 F.2d
1321 (5th Cir. 1987).
When Was the Last Time You Were Restrained by a Prince? Conservatism. . .
165