Issue 5 The definition of contract of carriage

(b) evidences or contains the contract of carriage,

The contract must provide for carriage by sea and may provide for carriage by other modes of transport prior to or after the sea carriage.

Further, it was thought that a contract could implicitly provide for carriage by sea, and that, in any event, the key for determining the scope of application of the draft instrument was the contract of carriage, not the actual carriage of the goods.

Article 28 contains a general obligation to deliver the goods ready for carriage, unless otherwise agreed in the contract of carriage.

The contract of carriage should meet the requirements of proposed new article 88a

(a) agree with the carrier on any variation of the contract of carriage

References to contractual places and ports mean the places and ports provided under the contract of carriage or in the contract particulars.

(c) The contract of carriage provides that this Instrument, or the law of any State giving effect to it, is to govern the contract.

(d) the contract of carriage provides that this Instrument, or the law of any State giving effect to it, is to govern the contract.

(a) Contract of carriage means a contract in which a carrier, against the payment of freight, undertakes to carry goods from one place to another.

(a) Contract of carriage means a contract in which a carrier, against the payment of freight, undertakes to carry goods from one place to another.

References to places and ports mean the places and ports agreed in the contract of carriage.

The phrase This undertaking at the start of the second sentence of the definition of the contract of carriage should be replaced by the phrase The contract

(x) Volume contract means a contract that provides for the carriage of a specified minimum quantity of cargo in a series of shipments during an agreed period of time.

As an example if the contract of carriage includes a provision the consignee shall accept the goods alongside the vessel as fast as she can deliver , the responsibility of the carrier (under the contract of carriage) ends when he has placed the goods on the quay.

In response it was explained that, while the carriage of live animals was typically multimodal in practice, it was never conducted on the basis of a multimodal contract of carriage and that therefore the non maritime leg of the carriage was subject to domestic law.

It was suggested that the inclusion of such a phrase would promote certainty regarding the application of the draft instrument to situations where the contract of carriage did not specify how the carriage was to take place, but where the actual carriage was by sea.

A contract that contains an option to carry the goods by sea shall be deemed to be a contract of carriage provided that the goods are actually carried by sea.

In the absence of any such specific provision in the contract of carriage or of such customs, practices, or usages, the time and place of delivery is that of the discharge or unloading of the goods from the final vessel or vehicle in which they are carried under the contract of carriage.

(b) the time of delivery of the goods is prior to the completion of their final discharge under the contract of carriage.

An additional condition suggested for inclusion in this regard was that the contract of carriage should be individually or mutually negotiated, such that it would be distinguishable from an adhesion contract.

However, it was observed that draft article 88a (2) mandated that all derogations should be contained in the contract of carriage.

Subject to article 85, if a contract of carriage subject to this Convention includes an arbitration agreement, the following provisions apply

The right of control under a contract of carriage may be exercised by the controlling party only and means the right to

(a) the time of receipt of the goods is subsequent to the commencement of their initial loading under the contract of carriage, or

The shipper must deliver the goods ready for carriage, unless otherwise agreed in the contract of carriage, and in such condition that they will withstand the intended carriage, including their loading, handling, stowage, lashing and securing, and discharge, and that they will not cause injury or damage.

It was suggested that the proposed bracketed text for the redraft of article 2 (1)(c) should be deleted, since, in the absence of a reference to internationality in the definition of the contract of carriage, the text might enable parties to a contract of domestic carriage to opt for the application of the draft instrument.

The parties to the initial contract of carriage should expressly agree that they would extend the exclusive jurisdiction clause to the third party

The next issue with respect to scope of application and freedom of contract that was considered by the Working Group was the definition of contract of carriage , as set out in A CN.9 WG.III WP.44.

Commentary on scope of application draft article 1 (a) definition of contract of carriage , including the proposed definitions of liner service and non liner service Scope of application draft article 1 (a) was intended to clarify the definition of contract of carriage in draft article 1 (a) of the draft instrument as contained in para. 6 of A CN.9 WG.III WP.36.

Some delegations are of the view that this is a commercial matter, which the parties would always agree on anyway in the contract of carriage.

(b) The parties' voluntary incorporation of this Convention as a contractual term of a contract of carriage that would not otherwise be subject to this Convention.

It was thought that in situations where it was found acceptable for jurisdiction to be exclusive, it should be exclusive for all purposes under the contract of carriage, regardless of who is claiming the benefit under the contract.

For the purpose of determining the carrier's period of responsibility and subject to paragraph 14(2) (previously 11(2)), the contract of carriage may not provide that

The consequence of these provisions is that loading, stowing and discharging are placed within the boundaries of the contract of carriage and, therefore, under the draft Convention.

However, another view suggested that protection from a multiplicity of claims could instead be achieved by inserting an exclusive choice of forum clause into the contract of carriage.

However, it was also indicated that the two provisions differed in scope, since draft article 88a (1) required that all the derogations, and the provisions affected by the derogations, should be contained exclusively in the contract of carriage and should be brought to the attention of the other contracting party, while draft article 88a (2) prevented the incorporation of derogations in the contract of carriage by reference.

The Working Group considered the general question of whether the draft instrument should allow for parties to the contract of carriage to agree to an exclusive jurisdiction clause.

This provision reads any holder that is not the shipper does not exercise any rights under the contract of carriage solely by reason of the fact that it

A smaller number of delegations expressed the strongly held view that the draft instrument should not allow parties to a contract of carriage to agree to exclusive jurisdiction clauses.

When the carrier delivers upon instruction of, in principle, the controlling party, the carrier is discharged from its obligation under the contract of carriage to deliver to the consignee.

In particular, it was indicated that reference to contractual relationships would not be appropriate in the case of maritime performing parties, for whom the contract of carriage had less relevance.

Notwithstanding chapters 4 and 5 of this Instrument, the terms of the contract of carriage may exclude or limit the liability of both the carrier and a maritime performing party if

In the definition of contract of carriage , the final bracketed sentence of the previous version of draft article 1 (a) had been deleted as decided by the Working Group (see above, paras.