Article by Jonathan Rodriguez-Atkatz
Besides memorializing an agreement to perform certain tasks, an important function of vessel contracts and marine terminal contracts is to apportion the risks attendant to performance between the contracting parties. This Article addresses the issue of how and to what extent risks may be allocated in vessel and marine terminal contracts. An understanding of the ways in which the applicable statutes and case law permit or forbid the parties to allocate the risks, for example, of loss or damage to cargo, of unseaworthiness of the vessel, or of injury to a crewmember, is essential to the effective drafting and negotiation of these contracts.
The limitations placed upon the contracting parties' ability to apportion risk vary depending upon the contract involved. A common carrier of cargo has less freedom to place the risk of loss on the shipper of goods by the wording in its form bill of lading than does an owner of a vessel who has agreed to carry cargo pursuant to a private contract of affreightment. Because an exhaustive discussion of this topic could conceivably be the subject of a large volume, I shall address some of the more commonplace areas of concern.
This Article will first review the scope of risk allocation in vessel contracts that contemplate private carriage. Next, it will address the extent and method by which parties may apportion risk in contracts for common carriage as a means of resolving problems presented by multimodalism. Last, this Article will discuss apportionment of risk in marine terminal contracts.
With a better understanding of the extent to which parties are permitted to allocate risk in vessel and terminal contracts, attorneys can formulate contractual schemes that will result in consistent and predictable applications of the law to the diverse parties involved in the multimodal transport of goods.
About the Author
Jonathan Rodriguez-Atkatz. Partner, Bogle & Gates, Seattle, Washington. A.B. 1979, Middlebury College; J.D. 1982, Fordham University.
Citation
64 Tul. L. Rev. 497 (1989)