Bill of Lading Disclaimer and Its Impact on Marine Cargo Insurance (English Version)

Author: Chen Liang
Publisher:
Publish Date: 2005-04-01
Features: The disclaimer clauses in contracts are the primary tools for dividing risks between the parties. The disclaimer clauses in the bill of lading contract (hereinafter referred to as the B/L contract) for maritime cargo transportation are no exception. Typically, the beneficiaries of the disclaimer clauses in the B/L contract are the carriers, while the parties with an interest in the goods (usually the shipper and the holder of the B/L) are the direct bearers of these disclaimer risks. However, the parties with an interest in the goods can purchase relevant insurance from maritime cargo risk insurers to transfer such disclaimer risks. Nevertheless, like other insurance contracts, the extent of risks covered in maritime cargo insurance contracts primarily depends on the agreement between the two parties, or more precisely, on the amount of the insurance premium paid. Of course, losses caused by the insured's malicious actions are uninsurable, otherwise insurance would be equivalent to a gift. On the other hand, some maritime risks that the carrier has not exempted in the B/L contract may be covered by cargo insurance purchased by the parties with an interest in the goods. This unnecessary insurance purchase behavior is usually due to the's unclear understanding of the risk allocation and alignment between the B/L contract and the maritime cargo insurance contract. To clarify the risk division and alignment between maritime cargo carriers, parties with an interest in the goods, and maritime cargo insurers under the B/L contract and maritime cargo insurance contract, it is necessary to conduct an interdisciplinary study of the two different legal texts—B/L contract law and maritime cargo insurance contract law—particularly focusing on the disclaimer clauses that play a dominant role in risk allocation in both contracts. The disclaimer clauses referred to here include all disclaimer clauses in the B/L contract, limitation of liability clauses, and statutes of limitations clauses, as well as all disclaimer clauses and insurance risk clauses in the maritime cargo insurance contract. This book primarily focuses on the disclaimer clauses in the B/L contract law of the United Kingdom and examines how the standard maritime cargo insurance contracts commonly used in the UK allocate the disclaimer risks stipulated in the B/L contract between the maritime cargo carriers and the insured parties. This book is based on the doctoral dissertation completed by the author at the University of Wales, Cardiff Law School. In the field of maritime law in the UK, there are numerous academic works that separately discuss the B/L contract and maritime insurance contract (including maritime cargo insurance contract), but there is a lack of interdisciplinary research on the risk division between the B/L contract and maritime cargo transportation contract. This book aims to fill this gap, which is also its innovation. London is one of the world's major maritime insurance centers, with over 70% of maritime insurance being underwritten or reinsured in London. At the same time, London is also one of the world's major maritime litigation centers. Additionally, China's maritime law, particularly the maritime insurance law, has been formulated with special reference to UK law. Therefore, this book not only promotes the development and research of maritime law in China but also provides a reference for the shipping and maritime insurance industries in China to better utilize UK law to protect their interests. Furthermore, since Hong Kong law differs very little from UK law, this book is also helpful for understanding Hong Kong maritime law (strictly speaking, Hong Kong law is part of Chinese law). As the B/L contract law in the UK adopts the Hague-Visby Rules, while the London insurance market typically uses the 1982 standard maritime cargo insurance contract (which has quasi-legal status), this book will primarily focus on these two legal documents, supplemented by relevant case law in the UK. Although the UK has not joined the Hamburg Rules, as an international maritime litigation center, London courts are likely to encounter cases involving the application of the Hamburg Rules in the future. Therefore, the Hamburg Rules will also be discussed in relevant sections of this book.