1. INTRODUCTION
One of the main pillars of international trade is maritime trade, which includes carriage agreements and laws controlling the interactions between cargo owners and carriers. The phrase "paramount clause," which is commonly seen in carriage contracts, is important in this context, especially when it comes to bill of lading transportation. Important provisions are primarily located on the reverse side of bills of lading and are intended to influence the legal interactions between shippers and carriers. The paramount clause, however, has consequences for the substance of charter parties and is not just applicable to bills of lading transportation.
2. GENERAL CONTENT OF THE PARAMOUNT CLAUSE
A clause inserted to a contract that makes reference to another legal code or rule is sometimes referred to as the paramount clause. This provision is mostly used in maritime transportation to identify the applicable law and restrict the carrier's liability.
The paramount clause ensures that the terms of the carriage contract are in compliance with the regulations set forth by another legal framework, such as the Hague Rules. This gives a legal foundation for establishing obligations in transportation and guarantees that the connections between parties are more precisely defined.
3. CHARTER PARTIES AND THE PARAMOUNT CLAUSE
Charter parties are agreements whereby a shipowner rents a vessel for a predetermined amount of time or to move cargo along a predetermined path. Such contracts may have a crucial clause outlining the rules that will control the carrier's obligations. The crucial clause guarantees clarity in the rules and obligations governing the transport by citing particular international rules or regulations.
4. THE IMPACT OF THE HAGUE RULES ON CHARTER PARTIES
A set of rules pertaining to bill of lading transportation were
introduced by the "International Convention for the
Unification of Certain Rules of Law Relating to Bills of
Lading" (Hague Rules), which went into effect
in 1924. Charter parties are exempt from these regulations,
nevertheless, until a bill of lading is issued. A charter party can
guarantee that these regulations are applicable by including a
paramount clause.
The Hague Rules are enforceable under Turkish law since Turkey is a
party to them. It is possible to specify that the Hague Rules will
apply to the contract's law by incorporating a paramount clause
in the charter party, as long as a bill of lading is issued.
These regulations come into play when a bill of lading or other
such document is issued, as stated in Article 1(b) of the Hague
Rules. A charter party is exempt from these regulations,
nevertheless. Nonetheless, the charter party and the bill of lading
may be linked by a paramount clause.
In 1968, the Hague-Visby Protocol, which updated the Hague Rules,
went into effect, strengthening the obligations of carriers and
adding clauses that gave cargo owners more protection while being
transported. Making use of the Hague-Visby Rules guarantees that
the transportation is governed by more thorough rules. The
carrier's liabilities can be precisely defined by using a
paramount clause in a charter party.
5. SEAWORTHINESS UNDER THE HAGUE AND HAGUE-VISBY RULES
Turkey's accession to the Hague and Hague-Visby Rules is a factor that increases the carrier's liability, providing more comprehensive protection for cargo owners. These rules are particularly important in terms of applying special provisions regarding the carrier's obligation to make the vessel seaworthy, suitable for the cargo, and ready for the voyage. The Turkish Commercial Code (TCC) regulates the carrier's obligation to keep the vessel seaworthy, suitable for the journey, and fit for the cargo in Article 1141. Paragraph (a) of Article 1141 of the TCC states: "In every kind of carriage contract, the carrier is obliged to ensure that the vessel is in a condition suitable for the sea, the voyage, and the cargo." According to this article, the carrier must prepare the vessel for the voyage and keep it in a seaworthy condition before the journey begins.
The Hague Rules regulate the carrier's obligation to make the vessel suitable for the voyage before the journey begins, covering vessel seaworthiness and the protection and safety of the cargo. The Hague Rules focus on vessel seaworthiness before the voyage commences, but they do not make provisions for the continuation of this obligation throughout the voyage.
With the Hague-Visby Rules, the carrier's obligation to provide a seaworthy vessel has become more clearly defined. The Hague-Visby Rules continue to require the carrier to make the vessel seaworthy before the voyage, but they also extend the carrier's responsibility to ensure the vessel remains safe during the voyage, not just at the outset. The carrier's liability is therefore regulated in a broader framework under the Hague-Visby Rules.
Liability will be determined for both the initial unseaworthiness and the unseaworthiness that arises during the voyage. If reference is made to the Hague and Hague-Visby Rules, the carrier's liability will be increased. The liability regarding initial unseaworthiness and unseaworthiness occurring during the voyage will be treated differently. Under Article 1141 of the TCC, the fault-based liability of the carrier pertains to the carrier's responsibility for the initial unseaworthiness of the vessel.
However, the carrier's responsibility for unseaworthiness during the voyage will not be evaluated under Article 1141 of the TCC but will be addressed under the provisions of Article 1178 and subsequent articles concerning the breach of the duty of care for the cargo. Article 1178 of the TCC states: "The carrier is obliged to exercise the care and attention expected from a prudent carrier, especially in the loading, stowing, handling, transportation, protection, supervision, and unloading of the cargo." According to this provision, the carrier's responsibility for the vessel being unseaworthy during the voyage will be evaluated under the breach of the duty of care and attention.
6. CONCLUSION AND EVALUATION
The paramount clause is essential to charter party procedures and maritime transportation. This clause can have a big influence on charter parties, even though it is usually connected to bill of lading transportation. The supreme clause can control the rights of the parties and the obligations of carriers by conforming to international standards.
The Hague Rules and Hague-Visby Protocol can be linked to charter parties via the paramount clause in relation to bills of lading. This ensures alignment and clarity between the parties, particularly in international transport processes. However, the scope and content of the paramount clause may vary in each case, necessitating a careful examination of each regulation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
