A Comparative Analysis of the Ethos, Role and Function of Implied Obligations in Shipping Law and General Law of Contract
The law governing the international carriage of goods by sea is deeply rooted in the doctrine of freedom of contract. The historical origins of the shipping industry itself can be traced to the era of ‘laissez faire’ in which contractual practice, based on negotiated terms and conditions, was free from the regulatory constraints of the state. It is for this reason that to this day modern shipping law is still rooted in the common law and customary trade usages with very limited statutory influences. Nonetheless, a review of the key elements of the law governing the international carriage of goods by sea reveals an array of terms and conditions implied by law which owe their origins not to the free will of parties or to trade usages, but to implication by the courts or through statutory enactments and international conventions. We find these developments enigmatic, given the ‘laissez faire’ background which originally informed early shipping industry practice. Even more surprising is the fact that this aspect of the development of shipping law does not seem to have attracted the attention of scholars, as the literature review clearly indicates that very little if any research has been conducted in this area. It is for this reason that we believe that this area of law deserves closer and critical scrutiny. This paper has the following main aims and objectives: (1) a comparative and critical overview of the various categories of implied terms in general contract law and in shipping law; (2) a critical appraisal of the judicial approach to the implication and classification of terms in selected shipping industry cases; and (3) a critical assessment of the philosophical basis for the implication and classification terms set against the historical background and modern context of international shipping industry practice.