چکیده:
The transferee of the bill of lading often does not have the opportunity or even the right to access the terms of the referenced ship charter agreement. On the other hand, considering the transferee's lack of awareness, obligating them to the aforementioned conditions may be considered unfair and a judgment may be issued declaring their invalidity. On the other hand, if the validity of the conditions is contingent upon the awareness of the contracting parties, the assurance of rights and obligations arising from the contract is lost. In this article, using a descriptive-analytical method, the solutions of legal systems regarding the issue of validity and scope of the referred clause are examined, and the possible approach of Iranian courts to this issue is explained. While in some legal systems (including America and France), including all the terms of the ship charter agreement in the bill of lading with a general reference is possible, English courts require the inclusion of subsidiary conditions (including the condition of selecting the dispute resolution authority) to be subject to a specific reference to those conditions. By delving into Iranian legal sources, it can be concluded that the likely response of Iranian courts to this issue should be very close to the approach of English law.
خلاصه ماشینی:
In this article, our focus is mainly on the time when a ship charter agreement is concluded between “A” (the ship charterer) and “B” (the shipowner or lessor) under certain conditions, and then “A”, who usually does not have goods to carry, engages in maritime transport undertaking by concluding a maritime transport contract with shippers via sea and issuing bills of lading for them and carrying the subject goods; while incorporating some or all of the terms of the previous charter agreement between itself and “B” into the bill of lading by including a clause, and obligating the shipper or holder of the marine bill of lading to them; that is, “A” is the charterer and party to the ship charter agreement in the first contract with “B”, and in the second contract with the shipper (maritime transport contract), is the carrier and party to the maritime transport contract.
Therefore, where the shipowner does not lease his ship and prefers for some reason to only undertake the carriage of goods by concluding a maritime transport contract and issuing a bill of lading, the contents of this article will not be applicable; unless the parties intend to incorporate the terms of the ship charter agreement or other similar terms into the issued bill of lading, which is very rare.
This judicial decision has recently been criticized in a case⁴; as some (506 p, 2014, Cooke and others) have said that to determine the incorporated terms, courts should primarily refer to the interpretation of the bill of lading, which is the only contract between the parties, and the intention of the parties to the charter agreement has no effect on the rights and obligations of the parties to the bill of lading⁵.
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