to the port of discharge. The provisions contained in Articles 87 and 88 together are
the “reasonable requirements”. Whether the carrier exercised its lien on cargo in a
“reasonable” manner as required by these two Articles is for the court to decide on a
case-by-case basis.
In the context of the theme of this chapter, the question arises as to whether a
shipowner under a charterparty can invoke Article 87. In terms of a voyage
charterparty, the answer must be in the affirmative. A shipowner under a voyage
charterparty can exercise a lien on cargo in accordance with Articles 87 and
88 which together comprise the requirement for him to act reasonably in exercising
his lien. In the CMC, the voyage charterparty is dealt with in Chapter 4 under the
caption “Contract of Carriage of Goods by Sea”, and the voyage charterparty is such
a contract. In accordance with Article 94 in this Chapter, where a voyage
charterparty, whether or not it is in standard form, does not provide a specific clause
pertaining to rights and obligations, or that in exercising his lien, the shipowner must
act reasonably, the relevant provisions of the chapter will apply.
94 In other words, the
shipowner must exercise the cargo lien in compliance with the reasonable requirements of the legislation.
By contrast, whether these “reasonable requirements” apply to a shipowner under
a time charterparty is a matter for further discussion. The time charterparty is
provided for in Chapter 6 of the CMC bearing the title “Charter Party”. Given that
Article 87 is under Chapter 4, it must be assumed that it does not apply to a
shipowner under a time charterparty.
Like Article 94, in accordance with Article 127, rights and obligations between
the shipowner and charterer provided for in Chapter 6 apply when in the charterparty
in question, there are no provisions on rights and obligations or those provisions are
the same as in relevant Articles in that Chapter. This means that, whether there is a
reasonable requirement concerning the shipowner exercising his lien on cargo, must
be determined by reference to the charterparty in question. If a standard form time
charterparty does not contain any clause(s) pertaining to reasonable requirements,
95
and the parties do not insert any such clause(s), the exercising of the cargo lien will
be subject to the relevant provisions in Chapter 6. In this context, Article 141 in
Chapter 6 applies, which provides that the shipowner under a time charterparty is
entitled to exercise a lien on cargo; but, unlike Article 87, it does not further stipulate
that the shipowner has a lien on a “reasonable amount” of cargo.
94 Article 94 of the CMC provides that, “in this Chapter (4) regarding the rights and obligations of
the parties to the contract shall apply to the shipowner and the charterer under voyage charter only in
the absence of relevant provisions or in the absence of provisions differing therefrom in the voyage
charter.”
95 Article 17 – Lien of Baltime 1939, as revised 2001, provides that, “The Owners shall have a lien
upon all cargoes and sub-freights belonging to the Time-Charterers and any Bill of Lading freight
for all claims under this Charter, and the Charterers shall have a lien on the Vessel for all moneys
paid in advance and not earned.”
Article 23 of NYPE 93 and Article 18 of NYPE 46 have similar provisions on lien.
Shipowner’s Implied Obligations in a Charterparty Relating to. . .
333
the “reasonable requirements”. Whether the carrier exercised its lien on cargo in a
“reasonable” manner as required by these two Articles is for the court to decide on a
case-by-case basis.
In the context of the theme of this chapter, the question arises as to whether a
shipowner under a charterparty can invoke Article 87. In terms of a voyage
charterparty, the answer must be in the affirmative. A shipowner under a voyage
charterparty can exercise a lien on cargo in accordance with Articles 87 and
88 which together comprise the requirement for him to act reasonably in exercising
his lien. In the CMC, the voyage charterparty is dealt with in Chapter 4 under the
caption “Contract of Carriage of Goods by Sea”, and the voyage charterparty is such
a contract. In accordance with Article 94 in this Chapter, where a voyage
charterparty, whether or not it is in standard form, does not provide a specific clause
pertaining to rights and obligations, or that in exercising his lien, the shipowner must
act reasonably, the relevant provisions of the chapter will apply.
94 In other words, the
shipowner must exercise the cargo lien in compliance with the reasonable requirements of the legislation.
By contrast, whether these “reasonable requirements” apply to a shipowner under
a time charterparty is a matter for further discussion. The time charterparty is
provided for in Chapter 6 of the CMC bearing the title “Charter Party”. Given that
Article 87 is under Chapter 4, it must be assumed that it does not apply to a
shipowner under a time charterparty.
Like Article 94, in accordance with Article 127, rights and obligations between
the shipowner and charterer provided for in Chapter 6 apply when in the charterparty
in question, there are no provisions on rights and obligations or those provisions are
the same as in relevant Articles in that Chapter. This means that, whether there is a
reasonable requirement concerning the shipowner exercising his lien on cargo, must
be determined by reference to the charterparty in question. If a standard form time
charterparty does not contain any clause(s) pertaining to reasonable requirements,
95
and the parties do not insert any such clause(s), the exercising of the cargo lien will
be subject to the relevant provisions in Chapter 6. In this context, Article 141 in
Chapter 6 applies, which provides that the shipowner under a time charterparty is
entitled to exercise a lien on cargo; but, unlike Article 87, it does not further stipulate
that the shipowner has a lien on a “reasonable amount” of cargo.
94 Article 94 of the CMC provides that, “in this Chapter (4) regarding the rights and obligations of
the parties to the contract shall apply to the shipowner and the charterer under voyage charter only in
the absence of relevant provisions or in the absence of provisions differing therefrom in the voyage
charter.”
95 Article 17 – Lien of Baltime 1939, as revised 2001, provides that, “The Owners shall have a lien
upon all cargoes and sub-freights belonging to the Time-Charterers and any Bill of Lading freight
for all claims under this Charter, and the Charterers shall have a lien on the Vessel for all moneys
paid in advance and not earned.”
Article 23 of NYPE 93 and Article 18 of NYPE 46 have similar provisions on lien.
Shipowner’s Implied Obligations in a Charterparty Relating to. . .
333