LMAA’s in-depth spotlight on shipping contracts
The London Maritime Arbitrators Association and the Hong Kong Branch of the Institute of Chartered Shipbrokers together organized a webinar - ‘Is there more to a contract than meets the eye?’ on 8th April. The webinar considered when and in which ways terms may be implied into shipping contracts and "The principles of implied terms under English law”.
Welcoming the participants, Clive Aston, LMAA Arbitrator, Past President LMAA introduced Mr Jagmeet Makkar, Arbitrator, Chair-ICS HK, who is teaching under the banner skills plus and he spoke about making commercial practitioners aware of the implied terms and their possible implications.
Mr Nevil Phillips, Barrister and International Arbitrator, Quardrant Chambers, London emphasized on modern law its terms and implications. “We need to understand properly the law on implied terms was and we appreciate that the modern law is the restatement of that, but perhaps with greater emphasis on the forensic process,” said Mr Philips
On cost impact not having understanding the contract, Mr Punit Oza, Executive Director, SCMA and Vice Chairman, ICS Singapore branch stated, “The level of understanding of implied terms within the industry is abysmal. People need to be aware of what is in the contract, but more than that they need to know what is not in the contract.” He majorly concentrated on commercial side of the contract.
Ms Elizabeth Sloane, FCIArb FMIArB MHKMAG, opined, “When we think of a shipping contract and legislation that might be implied from a commercial perspective, operationally you might not on the ground necessarily have the sale of goods act.”
“But bunkers and ships will be bought and sold like any other goods, so we do need to look at it, when we are considering what terms might be implied,” she added.
Mr Makkar raised a question to Mr Arthur Bowring, MH, President – Hong Kong Maritime Arbitration group, FICS, about how are the commercial negotiators and practitioners have that confidence level they would have to negotiate and enter into a contract? “People agree to large terms because it is safe, they do not have to think about the clauses in the contract,” answered Mr Bowring.
The panellists addressed the legal aspects of cases implying terms in shipping contracts context which among others, included a discussion on the Union Power and Res Cogitans. The implications of such decisions in a broader sense for various maritime contracts and resulting changes, if any, made to the existing standard forms.
The webinar also sought to answer “do commercial practitioners need to know and appreciate the obligations flowing from the implied terms” and thus the parties may consider contracting in or out of such implied terms to the extent that such exclusion can legally be made.
IMS
(Courtesy: Marex Media)