THE LEGAL IMPLICATIONS OF THE CONCEPT OF SHIPPING CONTAINER

Bordahandy, Pierre-Jean (2007). THE LEGAL IMPLICATIONS OF THE CONCEPT OF SHIPPING CONTAINER PhD Thesis, School of Law, University of Queensland.

       
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Author Bordahandy, Pierre-Jean
Thesis Title THE LEGAL IMPLICATIONS OF THE CONCEPT OF SHIPPING CONTAINER
School, Centre or Institute School of Law
Institution University of Queensland
Publication date 2007
Thesis type PhD Thesis
Supervisor Associate Professor Sarah Derrington
Abstract/Summary This study deals with maritime transport law, which for the purposes of UN General Assembly Resolution 2102 (XX) may be defined as falling into the body of rules governing commercial relationships of a private law nature involving different countries and is therefore a branch of private international law. This research is concerned with the way shipping containers have impacted on the legal framework of international carriage and particularly of ocean carriage. More precisely, this study considers shipping containers used for maritime transportation that are compliant with the International Organisation for Standardization (ISO) norms and that fulfil the requirements of the Convention for Safe Containers (CSC). However, beyond those technical requirements this study has focused on the concept of “shipping container”. It demonstrates that the concept of shipping container is a very specific concept that cannot be confused with the concepts of “package” or “part of the ship”. On that basis this research shows that the concept of shipping container corresponds to the concept of “means of transport” because it has all its major characteristics and should therefore adopt its legal regime. As a justification for this approach, this research compares in a first part the result of the application of different concepts to containers and shows that the concept of means of transport corresponds to the true nature of shipping containers. In addition to this first demonstration, in a second part this study tries to highlight the advantages of the application of the concept of means of transport to containers by applying the regime of voyage chartering to the service of supply of containers. The author has chosen a global approach by considering both, the different legal regimes given to containers in international carriage, and the courts’ treatment of the legal issues arising therein. Thus, the comparative law approach adopted in this analysis aims to provide a platform of analysis that is wide enough to enable both an in depth analysis of the problems raised by containers and a good overview for a possible uniform solution. This research tries to emphasise the inadequacy of the existing statutes in regard to the specific issues raised by the use of shipping containers and the absolute cacophony resulting from the courts’ considerations of these matters. In this regard, two main issues raised by shipping containers have been identified by the author. These two issues are the conceptualisation of containers and the influence of containers on the “period of liability system” which results from the existing rules. The author then examines the interaction between the rules, the containers, and the courts through the prism of these two issues. The study aims at revealing that, despite the imprecision of the major texts on transport law, it is the courts from various legal systems (Australia, England, France and the United States) who are essentially responsible for the current legal uncertainty existing in this field. Apart from adopting a comparative law approach, the author also considers the draft project for a new international convention for ocean carriage and makes some remarks regarding containerisation. In this respect, this study expresses some reserves as to the achievement of uniformity as a result of a treaty process but favours a better understanding of the concept of shipping containers by the courts and the application of the correlative remedies.

 
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Created: Fri, 21 Nov 2008, 15:36:14 EST