McGill Law Journal ~ Revue de droit de McGill
BOOK NOTE
D. Rhidian Thomas, ed., Legal Issues Relating to Time Charterparties
(London, U.K.: Informa, 2008), pp. xi, 378.
Two important texts on time charters under English maritime law
have appeared almost simultaneously and the event immediately causes
the maritime establishment (i.e., shipowners, charterers, stevedores, op-
erators, shippers, receivers, merchants, agents, lawyers, judges etc.), and
of course the academics, last but not least, (especially in our own minds)
to ask, Which is the better texti.e., the more accurate, the more practical,
the more useful?
The first text, Legal Issues Relating to Time Charterparties1, is re-
viewed here. The second text is the compendious sixth edition of Time
Charters2. The short answer to the question Which is the better text? is
that each fulfills a useful, necessary, and different purpose, so that the
texts complement each other and their sum standing together is far
greater than their sum standing alone.
Legal Issues consists of sixteen essays by sixteen legal experts who ex-
plored particular problems relating to time charterparties at a colloquium
in Swansea, Wales, on 11 and 12 July 2007. The sixth edition of Time
Charters, on the other hand, is a detailed legal examination (from stem to
stern) of time charterparties under English law.
The United Kingdom is fortunate to have both studies to explain its
time chartering law. Similarly the worlds shipping industry is fortunate
to have English time charter law extended beyond the boundaries of the
United Kingdom, by means of choice of law, choice of jurisdiction, and
choice of arbitration clauses as elucidated by these two texts.
At this point, I leave Time Charters to its readers, wish them bon voy-
age et bonne lecture, and turn my attention to Legal Issues.
The stage for Legal Issues is set in a perceptive Foreword by Sir An-
thony Evans, former Judge of the Court of Appeal and now Chief Justice
of the DIFC Courts in Dubai, U.A.E. He notes how conferences and semi-
1 D. Rhidian Thomas, Legal Issues Relating to Time Charterparties (London, U.K.: In-
forma, 2008) [Legal Issues].
2 Terence Coghlin et al., eds., Time Charters, 6th ed. (London, U.K.: Informa, 2008) [Time
Charters].
368 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
nars like this colloquium … mingle practical experience with the fruits of
top-level legal thinking and research.3
Rhidian Thomas follows in a very useful Preface, wherein he adroitly
defines and explains the central importance of the time charterparty to
maritime law. [It] rarely exists in isolation, because it is the father of
sub-time and sub-voyage charterparties, and is connected to bills of lad-
ing, waybills and delivery orders.4 He adds, In turn, it may itself be cre-
ated under a bareboat (demise) charterparty.5 Thereafter, the sixteen ex-
perts (including Thomas) present the special topic of their expertise.
Time and space do not permit a detailed discussion of the sixteen es-
says, but a convincing explanation can be made of how essays in general
contribute very beneficially to the understanding of the law of charterpar-
ties as presented in a single, detailed, and all-inclusive book such as Legal
Issues.
A major advantage of a collection of essays is that each essayist
chooses the subject of which he is an expert, and then allows himself free
rein to cover the issues carefully. Thus we find Grant Hunter, the ac-
knowledged authority on BIMCO forms, conducting a comparison of the
three major BIMCO charterparties: BALTIME 1939 (as revised in 2001),
NYPE 93, and GENTIME.6
Other essayists ask a question as their main theme, and then answer
it. For example, see Dr. Baris Soyers essay, Constructing Terms in Time
Charterparties Beginning of a New Era or Business as Usual?7 Or see
Andrew Tettenborns chapter, Assignees of Hire: How Far Can They Ig-
nore Charterers Claims Against Owners? Or see Richard Williams, who
cuts quickly to the bone and addresses the question What is a Lien?a
subject not everyone can agree upon. A most provocative question is posed
by Mark Hamsher, who asks, Is the approach of the judges in Hongkong
Fir still valid today?8 Or see David Foxtons essay Indemnities in Time
Charters9 in which he skilfully leads his witness (the reader) to the an-
3 Legal Issues, supra note 1 at vi.
4 Ibid. at vii.
5 Ibid.
6 See Grant Hunter, Standard Forms The BIMCO Experience in Legal Issues, supra
note 1, 1.
7 Baris Soyer, Constructing Terms in Time Charterparties Beginning of a New Era or
Business as Usual? in Legal Issues, supra note 1, 17.
8 Mark Hamsher, Seaworthiness and the Hongkong Fir Decision in Legal Issues, supra
note 1, 83.
9 David Foxton, Indemnities in Time Charters in Legal Issues, supra note 1, 93.
BOOK NOTES ~ RECENSION SIMPLES 369
swer he is looking for, no doubt relying on his experience as a barrister
conducting cross-examinations in court.
Some essayists even have the courage to present a conclusion at the
end of their essays. See Howard Bennetts Safe Port Clauses10 or Yvonne
Baatzs Clauses Paramount in Time Charters11, or Andrew Taylors
Damages for Breach of Time Charter: Some Recent Developments,
where the author concludes that awarding damages in each time charter-
party case is very subjective, being based on what the court considers to
be fair in the circumstances.12
Courageous conclusions are also drawn by Theodora Nikaki in an es-
say about the allocation of cargo claims,13 Christopher Hancock in his
chapter on slot charters,14 Keith Michel in his piece on war, terror, piracy,
and frustration,15 and John D. Kimball in Termination of Rights under
Time Charters.16
Finally, Francis Reynolds, the unofficial Dean of English maritime law
essayists, obeys his own essay rules and delivers a very selective but ele-
gant dissertation on the subject he knows best: charterparties and bills of
lading.17
The essay form thus allows the author to be discursive, bringing in
history, personal experiences and even wit. There can be no excuse for an
essayist being dull or ponderous and this collection of essays does not fall
into that trap.
Certainly, Legal Issues establishes that reasoned essays on charter-
party subjects are a valuable complement to a detailed, general text such
as Time Charters. Questions, however, will no doubt be asked in the fu-
ture, when a second edition of Legal Issues is planned. For example, to
10 Howard Bennett, Safe Port Clauses in Legal Issues, supra note 1, 47.
11 Yvonne Baatz, Clauses Paramount in Time Charters in Legal Issues, supra note 1,
177.
12 Andrew Taylor, Damages for Breach of Time Charter: Some Recent Developments in
Legal Issues, supra note 1, 257 at 267.
13 Theodora Nikaki, The Allocation of Cargo Claims between Owners and Charterers in
NYPE Charterparties in Legal Issues, supra note 1, 225.
14 Christopher Hancock, Containerisation, Slot Charters, and the Law in Legal Issues,
supra note 1, 247.
15 Keith Michel, War, Terror, Piracy and Frustration in a Time Charter Context in Legal
Issues, supra note 1, 199.
16 John D. Kimball, Termination of Rights under Time Charters in Legal Issues, supra
note 1, 215.
17 See Francis Reynolds, Time Charterparties and Bills of Lading in Legal Issues, supra
note 1, 161.
370 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
what degree, with the passage of time, will the contributing essayists be
obliged by the editor to partially modify their views? And will any essays
in the first edition have become completely redundant?
Again, to the readers of Legal Issues and, in this case, to the essayists
as well, bon voyage et bonne lecture.
William Tetley C.M., Q.C.
BOOK NOTE
R.W. Kostal, A Jurisprudence of Power: Victorian Empire and the
Rule of Law (Oxford and New York: Oxford University Press,
2008), pp. xiii, 529.
First published in hardback in 2005, reprinted in 2006, and first pub-
lished in paperback in 2008, R.W. Kostals A Jurisprudence of Power: Vic-
torian Empire and the Rule of Law18 is usefully contrasted with other re-
cent works on the rule of law such as Brian Z. Tamanahas On the Rule of
Law: History, Politics, Theory.19 As opposed to covering thousands of years
as well as the politics and theory of the rule of law in 180 pages, Kostal, a
historian and professor of law at the University of Western Ontario, and
author of Law and English Railway Capitalism, 18251875,20 spends 529
pages (comprising an introduction, seven chapters, an epilogue, a conclu-
sion, and an appendix) focusing on one historical episode spanning less
than a decade.
A Jurisprudence of Power provides an extensive treatment grounded
in primary sources, including journalistic ones, of the prolonged conflict
that arose in England over the suppression of the Morant Bay uprising in
Jamaica in October 1865, when a crowd of black men and women at-
tacked and burned a courthouse.21 Its suppression involved the proclama-
tion of martial law by then Governor of Jamaica, Edward John Eyre, and
the killing and torturing [of] hundreds of black Jamaicansthat is to
say, British subjects.22 The prolonged conflict that arose in England cen-
18 R.W. Kostal, A Jurisprudence of Power: Victorian Empire and the Rule of Law (Oxford
and New York: Oxford University Press, 2008) [A Jurisprudence of Power].
19 Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge: Cam-
bridge University Press, 2004).
20 R.W. Kostal, Law and English Railway Capitalism, 1825-1875 (Oxford: Clarendon
Press, 1994).
21 A Jurisprudence of Power, supra note 1 at 1.
22 Ibid.
BOOK NOTES ~ RECENSION SIMPLES 371
tred on the propriety and legality of the killing and torture. It was tied, in
some measure, to conflicting understandings of martial law and of a colo-
nial indemnity act,23 but also to a broader concern that [a] sprawling em-
pire of non-white, non-Christian peoples could not be safely governed
within a scrupulous constitutional framework.24 The conflict in England
was also closely tied to the activities of the Jamaica Committee, a grand
coalition of Christian activists and secular liberals25 whose raison dtre
… was to defend a liberal jurisprudence of power.26 Their efforts to crimi-
nally prosecute Eyre and others brought to the fore the contradictions
thrown up by law and imperialism,27 and raised the question of whether
there could be such [a] thing as a liberal empire.28 Kostals pairing of law
and liberalism, not at all unusual,29 invites a reading of his work along-
side that of Uday Singh Mehtas Liberalism and Empire: A Study in Nine-
teenth-Century British Liberal Thought.30 Mehtas book notably includes a
treatment of John Stuart Mill, who became a central actor in the Jamaica
Committee and therefore in Kostals story.
Kostal devotes his efforts to attending to, mapping out, and thematiz-
ing the English preoccupation with legality as manifested in, but also as
constitutive of, the Jamaica controversy. Throughout his book, Kostal
aims to show how legal ways of seeing and doing were central features of
English political discourse and conflict.31 He aims in part to provide a
corrective to previous historical accounts of the Jamaica controversy
which failed to apprehend that the Jamaica affair was understood, de-
scribed, and contested largely in terms of legal language and proce-
dures.32 Kostals book narrates and reconstructs one historical episode
closely tied to what Judith N. Shklar has famously called legalism, the
ethical attitude that holds moral conduct to be a matter of rule following,
and moral relationships to consist of duties and rights determined by
23 Ibid. at 11.
24 Ibid. at 68.
25 Ibid. at 15.
26 Ibid. at 473.
27 Ibid. at 485-86.
28 Ibid. at 486.
29 With respect to Canadian legal history, see e.g. Robert C. Vipond, Liberty and Commu-
nity: Canadian Federalism and the Failure of the Constitution (Albany: State Univer-
sity of New York, 1991), (see especially c. 5, Provincial Autonomy and the Rule of Law
at 113). See also the work of Richard Risk.
30 Uday Singh Mehta, Liberalism and Empire: A Study in Nineteenth-Century British
Liberal Thought (Chicago, University of Chicago Press, 1999).
31 A Jurisprudence of Power, supra note 1 at 464.
32 Ibid. at 2.
372 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
rules33 and of which [t]he court of law and the trial according to law are
the social paradigms, the perfection, the very epitome.34
Kostals twenty-two page introduction sets forth the Morant Bay up-
rising, its suppression, and the formation of the Jamaica Committee. He
ties the uprising at the courthouse to a racist local justice and situates it
against British Jamaicas history and constitution, particularly its history
of slavery and slave insurrection. He also draws attention to the suppres-
sions most famous victim, a coloured landowner-politician, George
Gordon,35 who had been a prominent advocate of reforms but of whom it
had not been alleged that he had been directly involved in acts of vio-
lence.36 Even though he surrendered voluntarily when charged with high
treason and sedition, he was removed from the civilian jurisdiction of
Kingston for trial by a military tribunal at Morant Bay.37 He was
[d]enied access to a lawyer, and most other vestiges of civilian criminal
justice,38 and was ultimately sentenced to execution and hanged.
Kostal finds unremarkable that [t]he insecurity of whites had al-
ways been the central premiss of public law and planning in the colony
but finds [m]ore intriguing that Jamaicas colonial officials … in the face
of dire public emergency, were also preoccupied with legality.39 This pre-
occupation, Kostal explains, also characterized Eyres response to the re-
bellion and his turn to legal advice and to martial law. Nevertheless,
[t]he definition of martial law was one vexed question, the nature of the
legal authority to proclaim martial law another.40 The preoccupation with
legality coupled with martial laws unsettled character are inseparable
and dominant themes in Kostals account and reflect the title of his work.
Kostal begins the principal part of his narrative by tracing the trans-
formation of the Jamaica affair into a historical episode of legalism and
ends by pointing to some of the limits of this legalism. The first chapter,
The Country of Law: Reconstructing the Morant Bay Uprising in Eng-
land, shows how [i]n the space of just more than two weeks, beginning
in the first week of November 1865, the Jamaica affair had been trans-
formed from a narrative about the salvation of Jamaican colonists into a
33 Judith N. Shklar, Legalism: Law, Morals, and Political Trials (Cambridge, Mass.: Har-
vard University Press, 1964) at 1.
34 Ibid. at 2.
35 A Jurisprudence of Power, supra note 1 at 13.
36 Ibid. at 14.
37 Ibid.
38 Ibid.
39 Ibid. at 7.
40 Ibid. at 10.
BOOK NOTES ~ RECENSION SIMPLES 373
narrative about the destruction of the English constitution.41 The last
chapter, The Most Law-Loving People in the World: The Denouement of
the Jamaican Litigation, ends with the following two sentences: The
courtroom, it was commonly thought, was a sphere that ought to be free
from all disturbance. The Jamaica affair had done much to dispel this
myth.42
The seven chapters as a whole narrate the Jamaica affair, focusing in
particular on the Jamaica Committees attempts to criminally prosecute
Eyre, who became the living embodiment of the argument for (and
against) martial law,43 for the murder of Gordon. The paradox of the
Jamaica affair, Kostal shows using the Gordon case as an example, is
that it so quickly stopped being about Jamaica and Jamaicans.44 In part
because of the leadership of John Stuart Mill and in part because of sur-
rounding circumstances, by the end of 1866, the Jamaica affair had
turned into a dispute about the civil liberties of Englishmen at home.45
It was no longer about the violence done to a hapless black peasantry. It
was now mainly about the violence done to the laws of England.46 Kostal
charts the Committees attempts to attain [i]ts single and unwavering
goal, to provide an occasion for a high court judgean unelected offi-
cialto vindicate what was viewed as the countrys true constitution.47
Kostal writes, More specifically, the Committee wanted to provide an op-
portunity (in the form of a criminal case) for a high court judge to pro-
nounce that the summary arrest, court martial, and execution of civilians
was illegal even when done under the banner of martial law.48 Ulti-
mately, while the Jamaica Committee failed to achieve a decisive legal
precedent about the law of martial law, it succeeded in causing the Eng-
lish governing class to confront the contradiction between the love of
power and the love of law.49 The Epilogue turns to civil litigation against
Eyre after the Jamaica Committee abandoned the strategy of (private)
criminal prosecution.
41 Ibid. at 37.
42 Ibid. at 431.
43 Ibid. at 271.
44 Ibid. at 190.
45 Ibid.
46 Ibid. Compare with Valverdes reading of R. v. Butler ([1992] 1 S.C.R. 452, 89 D.L.R.
(4th) 449) in which she highlights the Supreme Court of Canadas transformation of the
Canadian Charter itself into a new potential victim of pornography: Marianna Val-
verde, Laws Dream of a Common Knowledge (Princeton, Princeton University Press,
2003) at 38.
47 A Jurisprudence of Power, supra note 1 at 372.
48 Ibid.
49 Ibid. at 19.
374 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
In his conclusion, Kostal remarks:
If the legal system had failed to deliver a decisive answer to the con-
tradictions thrown up by law and imperialism, it was because they
could not be answered decisively, not, at least by citing legal authori-
ties. The constitutional law of England was not so much a fixed body
of precedents as a deep reservoir of public conscience, one roiled by
powerful cross-currents.
If it seems obvious that all constitutions, even those that have
been arranged systematically, are dynamic and contestable, this
point was not obvious to the main protagonists of the Jamaica affair.
Even Mill, the enormously erudite leader of the Jamaica Committee,
advanced a strangely naive view of constitutional law and interpre-
tation. Throughout the duration of the Jamaica controversy Mill
spoke of great legal and constitutional principles as if they were
rules of arithmetic.50
The tendency to see legal and constitutional principles as rules of
arithmetic is symptomatic of a legalism that forecloses the possibility of
an approach suitable to law as an historical phenomenon.51 Kostals
book is an extended invitation to not take for granted the turns to rules,
lawyers, and courts. Kostal invites us to see these turns as political ones
tied to historically situated ways of thinking and doing. As the McGill
Law Journals special issue on the fiftieth anniversary of Roncarelli v.
Duplessis should remind us,52 one of the dangers of abstractly celebrating
the rule of law and its various moments of triumph is the neglect of our
history.
Mark Antaki
50 Ibid. at 485-86.
51 Shklar, supra note 16 at 3.
52 This special issue is forthcoming in (2010) 55 McGill L.J.
