Transport Contract

The Commercial Code, Decree 2-70 of the Congress of the Republic of

Guatemala in Article 794: “Transportation contract. By the contract of
transportation, the carrier undertakes, for a certain price, to transport from one
place to another passengers or foreign merchandise that must be delivered to
the consignee.

"The transport contract is a volitional agreement between two or more

people that produces a binding result, it is a contract that has its own
personal, real and formal elements, it is a bilateral, consensual and
onerous contract, it is also presented to us as a contract of accession”.
1

For the author Carlos Bernardo Medina Torres, “It is a means by which one of the parties
called the carrier is obliged to another party called the shipper, in exchange for a price, to
drive from one place to another by a certain means. and within the set period, people or
things will already deliver these to the recipient.2

Classes

The transportation contract is classified taking into consideration various aspects. When
considering the space in which the transportation activity will be carried out, it is related to
the land, air, sea and river transportation contract. But, it must be taken into account that
this point of view classifies the activity and not the contract itself.

When the carrier acts alone or uses the services of third parties to fulfill its obligation, the
contract is classified as unitary and cumulative.

In Guatemala, it is only feasible to talk about two types of transportation, the following
being the same: a) Contract for the transportation of people. b) Contract for the
transportation of things.

Characters
 It is a typical contract : It is regulated by law.
 It is a nominated contract : It has a specific name.

1
Grunauer De Falu, María Cristina (2010) “Manual of Land Transportation Law”, Editions of the Rectorate, of
the National University of Tucumán. Tucumán, Argentina. Page 68
2
Mantilla Molina, Roberto L. “Commercial Law”. Seventeenth Edition. Mexico: Porrúa Editorial. 1977. P. 345
  It is a bilateral contract : both the shipper and the carrier are obligated.
 It is a consensual contract : it is perfected by the sole consent of the parties.
 It is an onerous contract : both parties receive the profits and each party is taxed for
the benefit of the other.
 It is a commutative contract : the reciprocal obligations of the parties are viewed as
equivalent.
 It is a main contract : it subsists by itself, without the need for another.

Contract for the transportation of people

Article 800 Commercial Code
Items
a. Personal: Carrier and passenger.
b. Reals: The value or price of transportation.
c. Formal: the ticket or ticket.

Contract for Transportation of Things.

Article 805
a) Personal Elements : Shipper, sender or consignor; Carrier, charterer or
transporter, and Consignee or Consignee.

The shipper: It is the person who delivers the objects to the carrier so that he, upon
receipt of them, can transfer them to a previously determined place; is the offeror of the
contract; He is the one who formulates the necessary proposal for the celebration of the
act. When requesting the provision of the service as remuneration, he is obliged to pay the
price of shipping or freight to the carrier.3

Shipper Obligations

a. Deliver the goods to the carrier

b. Provide documents
c. Pay the agreed shipping or freight

Shipper Rights

3
Jiménez Almaraz, Lorenzo, Latibex. The Latin American Stock Market, Spain, 2009, Master's Thesis in
Global and Regional Economic Integration, International University of Andalusia. Page 130
 a. Right to the execution of the agreed service
b. Right to void the contract.
c. Right of preference

The Carrier: Also called a carrier or freighter, he is the one who professionally assumes
the obligation to transport goods from one place to another and consequently is
responsible for receiving them, driving them and delivering them to the destination.

Obligations of the Carrier

 Receive the merchandise:

 Start a trip
 Safeguard and preserve cargo
 Deliver the cargo to the consignee

Carrier's Rights

 Right to payment of the agreed shipping or freight.

The Recipient: This is the person also called “ consignee”, to whom the effects or objects
of transport are sent; is the one who must receive them at the destination. And at the same
time the goods are destined for it, but it remains foreign to the legal relationship until the
moment in which the delivery of the thing is requested. From this moment, the shipper
ceases to be the creditor of the contract and is replaced by the recipient. We see,
therefore, that rights arise from the transport contract in favor of the consignee and for this
46
reason of esteem that we are faced with a case of contract in favor of a third party.

Obligations of the recipient

 Provide receipt for the goods

 Pay the carrier the shipping or freight and the expenses incurred

b) Actual : Merchandise or things that are transported and the freight or

payment for transportation.

46
Grunauer De Falu, María Cristina (2010) “Manual of Land Transportation Law”, Editions of the Rectorate, of
the National University of Tucumán. Tucumán, Argentina. p. 40
 c) Formal : The receipt; Likewise, you can request that a consignment note or
bill of lading be issued.

Prescription

The rights that may be claimed as a consequence of the transport contract expire in six
months, a period that must run from the end of the trip or the date on which the person or
things had to reach their destination, and this is It is regulated in Article 799 of the
Commercial Code, Decree 2-70 of the Congress of the Republic of Guatemala:
“Prescription. The actions derived from the transport contract will expire in six months,
counted from the end of the trip, or from the date on which the passenger or the things
carried should reach their destination.

Land Transportation Contract

The Land Transportation Contract is one of the types of transportation contracts. In this
particular contract, a carrier undertakes to load and/or transport, by land, people or
5
merchandise from one place to another. All this in agreed time and conditions.

The contract for the land transportation of merchandise is one by which a carrier company
undertakes, through payment of freight or freight, to receive from a person called the
shipper the effects that the latter will deliver to it and to transport them from a specific
place and deliver them in turn to a person called recipient or the shipper himself,
professionally assuming the risks arising from these acts.6

Due to this independence that must exist between the shipper and the carrier, the
difference between the transport contract and the rental of services is pointed out, since in
the former the carrier does not put its effects and functions at the disposal of the shipper,
but rather receives He loads it and carries out the transfer on his own.

In the specific case of Land Transportation Contracts for people, in order for it to be
considered that there is a transportation contract, its execution must be entrusted in its

5
Etcheverry, Aníbal Raúl. Commercial and Economic Law, Special Part Contracts, Astrea, Buenos Aires,
Argentina, 2002. .P. 15

6
Grunauer De Falu, María Cristina (2010) “Manual of Land Transportation Law”, Editions of the Rectorate, of
the National University of Tucumán. Tucumán, Argentina. p. 42
entirety to the carrier, there must be no personal or active intervention of the passenger in
the execution of the transportation. It is a consensual contract where it can be documented
by means of a ticket or passage, or by simply expressing consent to receive the service, it
is considered that a contract already exists between the parties, in this case the carrier
and the passenger.

Personal items
a. Carrier: It is the one who undertakes the obligation to transport.
b. Shipper, shipper, sender or consignor: He is the one who, on his own behalf or on
behalf of another, commissions the transfer of people or merchandise to a carrier.
c. Consignee or consignee: is the person to whom the goods are sent. The same
person can be both shipper and consignee.
real elements
 Merchandise: goods or materials that are going to be transported.
 Price: economic consideration that the carrier receives for performing the
transportation service.
Formal elements
The document that reflects the transport contract varies depending on the means of
transport. In turn, the means of transport is chosen based on the goods that make up the
shipment and other factors such as: urgency, cost, distance between the collection and
delivery points.

Within the obligations that arise from the Land Transportation Contract of people, the
obligations of the passenger and the obligations acquired by the carrier or transporter are
differentiated.

In the case of the passenger, the main obligation that he or she acquires is to pay the price
of the service, and as accessory elements are that the passenger use the service on the
indicated date, occupy the means of transportation using it properly, and if there are any ,
do not disturb the other passengers. Likewise, it is considered that the passenger must
take the measures he deems necessary to safeguard his safety during the journey to
where he is going when using the transportation service provided by the carrier or carrier.

In the case of the obligations acquired by the carrier, it is considered that its main
obligation is to transport the passenger to the destination, time and date on which the
passenger agreed to acquire the service. As regards the Land Transportation Contract of
goods, the contract is made between the carrier and the sender, where there may also be
a recipient other than the sender, but the latter is not a subjective element necessary for
the execution of the contract. .

Among the obligations that arise for the shipper is that of delivering the goods to the carrier
in conditions suitable for transport, as well as all the documents that are necessary for the
transit of the thing, such as licenses, customs documents, etc. Likewise, the shipper must
pay the price or shipping.

The carrier, for its part, has the obligation to receive and transport the goods that were
delivered to it, as well as to carry out these tasks as provided for in the contract, to guard
the goods for as long as they are in its possession and to deliver them to the recipient in
good condition. .

The carrier is responsible in cases where the merchandise is not delivered, is delivered in
part, after the deadline or for damage suffered during transportation.

Maritime Transport Contract

Maritime transport is the central activity of trade by sea. It is the backbone of maritime
traffic7

In the same way it is defined by the Hague Rules 8 as one that is documented by a bill of
lading or any document of similar title, to the extent that such document refers to the
transportation of merchandise by sea; including any bill of lading or similar document
issued under a charter contract, from the moment that such bill of lading or document of
similar title regulates the relations between the carrier and the holder thereof.

The so-called Hamburg Rules86 establish that "contract of maritime transport" means any
contract by virtue of which the carrier undertakes, against payment of freight, to transport
goods by sea from one port to another; However, the contract comprising maritime
transport and also transport by any other means shall be considered a contract of maritime
transport for the purposes of this Convention only with respect to maritime transport. 9
7
Cervantes Ahumada, R. (1970). Maritime Law. (1st Ed.) Mexico City: Editorial Herrero SA Page 604.
8
International Convention for the Unification of Certain Rules on Bills of Lading, signed in Brussels on August
25, 1924. Article 1. [Online] Consulted at: http://www.iidmaritimo.org/wp-content/uploads/2011/03/10.-
reglas_haya_1924.pdf [Accessed: October 23, 2018]
9
United Nations Convention on the Carriage of Goods by Sea - the "Hamburg Rules". Approved by a
diplomatic conference on March 31, 1978. Entered into force on November 1, 1992. Article 1. [Online]
Consulted at: http://www.uncitral.org/pdf/spanish/texts/transport/hamburg/hamburg_rules_s.pdf [Accessed:
Characteristics of the Transport Contract

a. Bilateral d. Typical
b. Consensual e. Major
c. Onerous

Elements of the Transport Contract

Personal Items

a. shipowner, shipowner and owner, to designate this person as the person in charge of
the operation of the vessel. It is the natural or legal person who exercises ownership of
the nautical function or navigation company. "He is the one who operates a ship using
it for a certain purpose, for which purpose he arms it, equips it with materials,
provisions and personnel."10
b. The shipper is the person who has the obligation to deliver to the carrier the things that
are the subject of the transport contract.
c. The consignee or consignee is the person who receives from the carrier, the goods
that have been transported, or receives from others, goods that have been consigned
to him.
d. The captain is the most important official after the owner or shipowner.
e. The crew is the last of the personal elements. It is understood as the integrated group
of people, in addition to the captain, officers and sailors. They are the people who
provide their work in the direction and maneuvers of the ship as a service.

Royal Element

a. The ship
b. Price

formal element

a. The Bill of Lading, which is a security document relating to the merchandise, issued in
relation to its shipment on board, for the benefit of the shipper or consignee who has

October 23, 2018]

10
Beltrán Montiel, Op. Cit. Page 156
 received it by any legitimate title.”11 The bill of lading fulfills three basic functions: 1. It is
proof of the contract of carriage 2. Testifies to the delivery of the merchandise on board
ship 3. It constitutes a means of transferring rights over merchandise in transit, by
transferring the paper document to its buyer.

Air Transportation Contract

In Spanish Law, Alberto Díaz Moreno has defined it by pointing out that: “it is one by which
a person undertakes, in exchange for a price, to transport from one place to another, by
air, either to another person or to certain things" 12 Eduardo Hamilton defines this contract
as "one by virtue of which one undertakes, for a certain price, to transport from one place
to another, by air, passengers or other people's merchandise and to deliver these to the
person to whom they are directed."13

The parties involved in the contract.

Personal Element

They are the carrier or air carrier, which is the natural or legal person who, habitually or
separately, undertakes to carry out the transportation; and the passenger 14 , charger15
either

client, who is the one who contracts with the air carrier.

“Carrier, transporter or transporter is the one who, whether a natural or legal person,
contravenes the obligation to drive from one place to another, either the people or the
things he receives, concluding the transport contract and assuming the obligations that
derive from it. The person of the carrier may not coincide with that of the owner of the
aircraft, not even with that of its operator.16 .

11
Beltrán Montiel, L. Ibid. Page 156
12
DÍAZ MORENO, Alberto, in Commercial Law Lessons, AA.VV (JIMÉNEZ SÁNCHEZ, Guillermo, coord.),
Editorial Tecnos, 11th edition, Madrid, 2006, p. 528.
13
HAMILTON, Eduardo, “Manual of Air Law”, 2nd edition, Legal Editorial of Chile, Santiago, 1960, p. 436.
14
Passenger: “Any person transported or to be transported on an aircraft with the consent of the carrier”,
MAPELLI LÓPEZ, Enrique, The international air transport contract, Editorial Tecnos, Madrid, 1968, p. 28.
15
Hamilton defines it as: “He who commissions driving on his own behalf or on behalf of another.” HAMILTON
op.cit.p.436. VIDELA ESCALADA points out that it is the one who entrusts the carrier with the transfer of the
goods from one place to another and undertakes to pay him a certain price for this and, consequently, the
relationship
16
MAPELLI LÓPEZ, Enrique, The international air transport contract, Editorial Tecnos, Madrid, 1968, p. 27.
Royal Element

It consists of the obligation to drive that falls on the person of the carrier, contracting an
obligation of result, since he undertakes to carry out the transport and not only to make
available the means so that the trip can be made. 17 . That is, you are obliged to transport a
person, their luggage or an item from one point to another, and to deliver them to the
destination, in the same conditions in which you received them at the beginning of
transportation.

Regarding its legal nature, the most modern trends consider it as a work leasing contract,
since the air transporter undertakes an obligation of result consisting of the unscathed
movement of the person or thing to the destination. Notwithstanding the above, between
the leasing of works and transportation there are differences that prevent their
identification, such as, for example, that in the transportation of things the carrier assumes
custody of the things carried, an element that we do not find in the leasing of works.
Therefore, we consider that the legal nature of this contract has a sui generis character,
different from other commercial contractual figures, which make it autonomous, special
and typical.

The Ship Lease Contract

Jiménez Sánchez defines it “as that contract by which the owner transfers its use,
temporarily and for a price, to another, whether the vessel is unassembled, equipped or
rigged, or whether it is armed, equipped and rigged.”18

In accordance with the Argentine Navigation Law, “vessel leasing is the contract by which
one party undertakes, by paying a price, to grant the other the use or enjoyment of a
vessel for a certain time, transferring to it the tenure"

17
MÁRQUEZ LOBILLO, Patricia, Denial of boarding in air passenger transportation, Marcial Pons, 2013, p. 32
18
Jiménez Sánchez, Guillermo J (Comp.). Commercial Law. Spain. Editorial Ariel SA 1992. Second edition. P.
781
In the same sense, Witker indicates that “in the lease contract, the lessor is obliged to
grant the lessee, through a monetary price, the use and enjoyment of a specific
warehouse. In said agreement there is a transfer of ownership; The lessor is not involved
in the nautical and commercial management of the ship and the lessee acquires, in turn,
the status of shipowner-driver of the ship. It is interesting to note that for sectors of this
doctrine, the character of shipowner is acquired by the sole fact of exercising the technical
direction of the ship, that is, nautical management and in which a relationship of direct
dependence on the captain and crew prevails. ”19

In accordance with the Legal Encyclopedia, the ship leasing contract can be defined as
“that by which one party, the lessor, transfers to another, lessee, the use or enjoyment of
the vessel for a determined period of time in consideration for the price. .”20

Characteristics

The vessel lease contract has the characteristics of being a contract:

a. Bilateral: since reciprocal obligations arise for both parties.

b. Consensual: whenever the contract is perfected by the simple consent of the
parties regarding their main obligations within it (giving the use and enjoyment of
the vessel on the one hand, and paying the price on the other). The actual delivery
of the vessel is not essential for the contract to exist and be perfected.
c. Main: since it does not need any other contract to survive. It is an independent
contract that may include within its content other accessory contracts such as the
bond.
d. Onerous (Commutative): because there are reciprocal benefits and encumbrances
between the parties and also, commutative, because the parties know from the
beginning the benefits to which they are obliged.
e. Typical: because it is regulated in the Civil Code.
f. Successive, since its fulfillment is not exhausted in a single act but extends
throughout the duration of the contract.

Legal nature

19
1 Legal Research Institute. Witker V, Jorge. UNAM. Ship use contracts in Mexican maritime law. Mexico.
http://www.juridicas.unam.mx/publica/librev/rev/facdermx/cont/121/pr/pr11.pdf. Consultation carried out on
October 23, 2018.
20
Legal Encyclopedia. http://www.enciclopedia-juridica.biz14.com/d/arrendamiento-de-buques/arrenda miento-
de-buques.htm. Consultation carried out on October 23, 2018.
Jimenez Sanchez21 refers to the legal nature of the contract in question, depending on the
modality being studied. In accordance with what will be studied later, regarding the
bareboat lease, it indicates that it is indisputable that this is a simple and pure lease of a
thing, in which the essential thing is the transfer of possession to the lessee, who in turn
He can appoint a captain, give him orders and use, within the agreement, the ship at his
will, both in the nautical and commercial spheres.

Items

Personal

The personal elements of the Vessel Leasing contract are the lessor, lessor or lessor,
which is the person who grants the use and enjoyment of the vessel to another; and the
lessee or lessee, who is the one who is obliged to pay a price for the use and enjoyment
conferred.

Royals

Because the lease contract is bilateral, each of the contracting parties is responsible for
providing a service. The lessor has the obligation to transfer the use and enjoyment of the
vessel to the lessee. For its part, the lessee has the obligation to pay the price agreed in
the lease contract for the use and enjoyment of the vessel, which is commonly known as
rent or rent.

Formal

The leasing of the vessel, like leasing in general within Guatemalan legislation, is not
provided with any formality, and can, consequently, be formalized through any of the
forms.

Obligations of the parties

From the lessor or lessor. The main obligations of the lessor are fundamentally three:

a. Deliver the vessel at the agreed place, time and date.

b. Deliver the vessel to the lessee in perfect seaworthy condition
c. Maintain the vessel in serviceable condition during the duration of the contract
d. Sanitation obligation.

21
Jiménez Sánchez, Guillermo J (Comp.) Op. Cit., Page. 783.
The main obligation of the lessee is to pay the rent or rent stipulated in the respective
contract for the transfer of the use and enjoyment of the vessel. Expanding on the topic,
Beltrán Montiel22 indicates that the following should be observed:

a. The unseaworthiness of the vessel, when it occurs during the contract period, gives
authorization to the lessee to suspend payment of the rental (as long as the
contract has not been expressly agreed). In the event of unseaworthiness due to a
hidden defect, this fact could lead to the termination of the contract.
b. In the event of loss or damage suffered by the transported goods due to the
unseaworthiness of the vessel, the judicial deposit of the rents could be justified
until the liability action is resolved.

Modalities

Bare boat charter

The United Nations Convention on the Conditions of Registration of Ships states that
“bareboat charter means a contract for the rental of a ship for a specified period, under
which the lessee has full possession and control of the ship.” vessel, including the right to
appoint the master and crew for the charter period.” 23 , in which the owner temporarily
transfers the use of the vessel in exchange for a price (the vessel not being armed,
equipped or rigged), it is valid to conclude that the lessee receives possession of the
vessel and becomes a shipowner, whenever it passes directly to exploit it, equipping and
manning the ship received.

Armed vessel lease

Ruiz de Velasco y del Valle indicates regarding this type of lease, that "the lessor transfers
the vessel, to the lessee, with its equipment and crew in perfect navigation conditions,
without reserving the nautical or commercial direction, and without assuming any
responsibility. regarding the transportation of cargo, or the operation intended to be carried
out with it. The crew must be under the orders of the lessee, who is the one who pays their
salaries and who acquires the rights and obligations derived from the navigation company
to which the leased vessel is dedicated.24
22
Beltrán Montiel, Luis. Navigation Law Course. Buenos Aires, Argentina. Astrea Editorial by Alfredo and
Ricardo Depalma. 1994. Seventh reprint. P. 225
23
United Nations. United Nations Convention on the Conditions of Registration of Ships. Geneva, Switzerland.
February 7, 1986. Article 2
24
Ruiz de Velasco y del Valle, Adolfo. Commercial Law Manual. Madrid Spain. Comillas Pontifical University.
2007. Third edition, Page 1160
Charter Contract

From its structure and concept it has been possible to develop the theory of contracts for
the use of the ship since it has served as a genesis and pillar in the evolution of the
concepts and other contracts. In general terms, the purpose of chartering is the
exploitation of the vessel itself and consists of providing its use to a person other than its
owner.

In accordance with Decree 2946 (former Commercial Code) chartering “is a transport
contract by which the shipowner, personally or represented, leases the equipped and
armed vessel to another and undertakes to transport the goods to a specific place in it. or
people, for an agreed price. This price is called "freight." The person who leases the
vessel and promises transportation is called a "charterer"; and “charterer” is the one who
loads the ship and pays the stipulated price.”25

One of the essential characteristics of chartering is that its purpose is the transportation of
goods or people.

The charterer has the obligation to receive the cargo, transport it and deliver it to its
destination.

The contract is considered a charter when the shipowner reserves control over the captain
and the crew, and transfers only to the charterer the right to give orders on the execution
of the transportation (loading, transportation and unloading).

In this situation, the captain continues to be a dependent of the charterer, whom he

represents, and in whose name he holds possession of the vessel.

The charterer reserves the right to freely hire and fire the captain and crew, assuming,
therefore, the obligation to pay their salaries and wages.

Contract under which one of the parties (charterer) undertakes to make a vessel available
to another party (charterer), who in exchange undertakes to pay remuneration (freight)

This type of contract is concluded in cases of discretionary transportation, in which there is

no reiteration of the itinerary nor is a calendar followed.

Personal items

25
Presidency of the Republic of Guatemala. Government Decree 2946 (former Commercial Code). Article 972.
 a. Charterer: Person who places the vessel or part of it at the disposal of the other
party, so they must have control over it. It can be the shipowner or the shipowner.
b. Charterer: Person at whose disposal the vessel is placed for the transportation of
its goods and who undertakes to pay freight and ship the goods.
c. Receiver of the goods: This may or may not coincide with the person of the
charterer. You have the obligation to unload and unload the goods without delay at
your own expense and risk, as well as remove them from the side of the ship.
d. Captain: person who has the highest authority on the ship.
e. Chartering agent: Acts as an intermediary in contracting charters, locating for the
shipper the most suitable vessels for the transportation of the charterer's goods.

real elements

a. The vessel: It is the essential element of the contract, the main obligation of the
carrier, consisting of making the vessel available to the charterer or shipper at the
agreed port and date. If the contract refers to a specific vessel, it may not be
replaced by another, unless expressly authorized to do so.
b. Freight: It is the charter price set between the parties for each transport and which
must be paid by the charterer or by the recipient. If the freight is calculated by the
weight or volume of the goods, it will be set according to the weight or volume
declared in the bill of lading, except for fraud or error.
c. The goods: These will be placed on the side of the vessel by the charterer, who will
also carry out the loading and stowage at his own expense and risk.

Formal elements.

a. THE formal element in accordance with Decree 2946 (former Commercial Code)
177, the charter contract must be drawn up in writing and cannot be proven with
witnesses when the freight exceeds three hundred quetzales, additionally
indicating that the document in which the conditions of the contract will be called
"charter policy", and may be recorded in a public deed or authenticated document.

Time charter or time-charter.

The Mexican Maritime Navigation and Commerce Law indicates that “under the time
charter contract, the charterer undertakes to place an armed and crewed vessel at the
disposal of the charterer for a specified time, in exchange for payment of freight. ” 26

In a broader sense, Arroyo indicates that time chartering is a contract whose main object is
navigation for a certain time, in exchange for an economic consideration called freight.
Likewise, it points out that from the previous definition, three essential elements of the
contract can be obtained: a) that the charterer's main obligation consists of the navigation
activity during the agreed time, carrying out during the same the agreed trips under the
stipulated conditions; b) that the temporary use of the vessel is in seaworthy conditions;
and c) that freight is calculated based on time (hours, days, weeks, months or years), not
as in voyage chartering and transportation, which is calculated based on the goods
shipped.27

26
General Congress of the United Mexican States. Maritime Navigation and Commerce Law. DOF01-06-2006.
Article 121.
27
Arroyo, Ignacio. Compendium of Maritime Law. Madrid Spain. Tecnos Editorials. 2002. Twenty-second
edition. P. 131.
Characteristics

a. Bilateral d. Onerous (Commutative)

b. Consensual e. Typical
c. Major f. Of successive tract

Items

b. There are two personal elements of the contract: the charterer and the charterer.
The charterer is the person (shipper) who assumes the obligation to sail during the
time agreed in the contract, under the stipulated conditions and instructions. For his
part, the charterer is the person who contracts with the charterer for the use of the
vessel for a certain period of time, to carry out within it, any commercial operation
that he decides and that has been stipulated in the contract.
c. The real elements of the time charter contract are three: the vessel, the time and
the freight. The freight represents the consideration for the obligations assumed by
the charterer and as Vicente y Gella points out, it is “the price paid by the charterer
to the charterer for the use of the vessel and can be set. 28 At the same time, the
charterer then pays a certain amount per month, year, or other chronological unit
independent of the voyages on which the ship is used.” Freight, like rent, is the
economic consideration for the use of a vessel.
d. THE formal element in accordance with Decree 2946 (former Commercial Code)
177, the charter contract must be drawn up in writing and cannot be proven with
witnesses when the freight exceeds three hundred quetzales, additionally
indicating that the document in which the conditions of the contract will be called
"charter policy", and may be recorded in a public deed or authenticated document.

Obligations and rights of the parties.29

Obligations of the charterer.

a. Make the vessel available to the charterer at the agreed place and time.
b. Maintain the vessel in a seaworthy state during the term of the contract.
c. The commercial transfer of the vessel
d. Make trips as quickly as possible.
e. Receive the ship

28
Vicente y Gella, Agustín. Comparative Commercial Law Course. Spain. 1960. Fourth edition Page. 604
29
Arroyo, Ignacio. Op.Cit., Pag. 202
Charterer's rights

a. Do not sail the ship when it is exposed to dangers that could not be foreseen in the
original contract.
b. Do not start a trip that can be expected to conclude after the expiration date of the
contract.
c. Demand from the charterer all compensation, payments, surcharges and charges
d. Demand payment of freight from the charterer

Obligations of the charterer.

a. Receive the ship.

b. Take charge of the operating and navigability expenses of the vessel
c. Use the vessel in accordance with the provisions of the contract and in accordance
with its technical characteristics.
d. Pay the freight.
e. Return the ship in the condition in which you received it.

Charterer's rights

a. Give orders to the captain regarding the way the ship is used
b. Embark a flight attendant
c. Use the vessel for the duration of the contract and make it sail
d. Require that the ship be maintained in seaworthy condition

Chartering by voyage or charter voyage

The Mexican Maritime Navigation and Commerce Law indicates that “under the voyage
charter contract, the charterer is obliged to make all or a specific part of a vessel available
to the charterer to carry out one or more voyages.”30

For his part, Arroyo points out “that it is the contract by virtue of which the shipowner
(owner) undertakes to the charterer, in exchange for a price or freight, to put a vessel in
seaworthy condition for the performance of an agreed voyage. ”

Characteristics

a. Bilateral d. Onerous
b. Consensual e. Typical
c. Major f. Of successive tract

Items

a. There are two personal elements of the contract: the charterer and the charterer. It
is important to emphasize that the charterer is the person (shipper) who assumes
the obligation to make the trip, while the charterer is the person who contracts with
the charterer to use the vessel for one or more trips, and usually delivers the cargo
for transportation. .
b. The real elements of the time charter contract are three: the vessel, the voyage
and the freight. Regarding the trip, it can be indicated that, unlike time chartering,
the charterer must not sail the vessel as an ultimate obligation, but more
importantly, he must carry out the agreed trip or trips.
c. The formal element, As indicated for time chartering, in accordance with Decree
2946 (former Commercial Code), the contract must be drawn up in writing and may
be recorded in a public deed or authenticated document.

Obligations and rights of the parties.

Obligations of the charterer

a. Make the agreed vessel available to the charterer at the place and time stipulated
in the contract.
b. Take the agreed trip.

30
General Congress of the United Mexican States. Maritime Navigation and Commerce Law. DOF-01-06-
2006, Article 123.
 c. Regarding the last obligation of the charterer, it is convenient to distinguish two
cases: 1. When the charterer only assumes the obligation to carry out the trip
under his management, leaving the charterer to manage the transportation of his
own goods or those of a third party; and 2. When the charterer assumes, in
addition to making the trip, the
d. obligation to move merchandise (assuming in this case the status of carrier or
carrier).

Charterer's rights

a. Its amount must be indicated in the charter party.

b. The so-called charterer's privilege

Charterer's obligations

a. Pay the agreed freight

b. When the voyage charter is intended for the transportation of goods, the charterer
will have the obligation to ship them in accordance with the provisions of the
respective contract.
c. Pay any demurrage incurred

Charterer's rights

a. The subcharter
b. In the event of the sale of the vessel, the charterer will have the right to have the
new owner fully respect his contract and his rights acquired under it.
c. Right to withdraw from the charter before or after having loaded all or part of the
cargo,
d. Unload your merchandise before reaching the destination port
e. Make use of the stays agreed in the contract

Bareboat charter

Contrary to the previous one, in this case the shipowner provides the vessel, but without
equipment or crew. For this reason, the charterer chooses to obtain the appropriate
insurance to cover any loss or damage in the event of an accident. According to Beltrán
Montiel, among the charter contracts, this is the least common, due to the operating costs
and the high value of the vessels.
General cargo charter

This is the most practiced; “The document that implements this contract is called shipping,
and is configured when the carrier accepts merchandise from all the shippers that present
themselves. By the general cargo charter contract, the charterer or carrier is obliged to
transfer merchandise from one place to another, by sea, and is also obliged to deliver it
within the established deadlines, in exchange for charging the value of the transportation
called freight. ”.31

References
31
Beltrán Montiel, L. (1987) Navigation Law Course. Buenos Aires: Editorial Astrea by Alfredo and Ricardo
Desalma. Page 253
Bibliographic references

 Arroyo, Ignacio. Compendium of Maritime Law. Madrid Spain. Tecnos Editorials. 2002.
Twenty-second edition.
 Beltrán Montiel, L. (1987) Navigation Law Course. Buenos Aires: Editorial Astrea by
Alfredo and Ricardo Desalma
 Cervantes Ahumada, R. (1970). Maritime Law. (1st Ed.) Mexico City: Editorial Herrero
SA
 Dávalos Mejía, L Carlos. Titles and Credit Contracts, Bankruptcy, Mexico, Oxford
Editorial, 1998
 DÍAZ MORENO, Alberto, Lessons in Commercial Law, AA.VV (JIMÉNEZ SÁNCHEZ,
Guillermo, Coord.), 11th edition, Tecnos, Madrid, 2006.
 Grunauer De Falu, María Cristina (2010) “Manual of Land Transportation Law”,
Editions of the Rectorate, of the National University of Tucumán. Tucumán, Argentina.
 Hamilton, Eduardo, “Manual of Air Law”, 2nd edition, Legal Publishing House of Chile,
Santiago, 1960
 Jiménez Almaraz, Lorenzo, Latibex. The Latin American Stock Market, Spain, 2009,
Master's Thesis in Global and Regional Economic Integration, International University
of Andalusia.
 M Ripert, Georges. “Elementary Treaty of Commercial Law”. Volume II. Buenos Aires:
Typographic Editora Argentina. 1954.
 Mantilla Molina, Roberto L. “Commercial Law”. Seventeenth Edition. Mexico: Porrúa
Editorial. 1977.
 Mapelli, Enrique, “Legal Considerations on the 1999 Montreal Convention”, Buenos
Aires Symposium, 40th Anniversary of ALADA, Buenos Aires, 2001; - Works on
Aeronautical and Space Law, Ibero-American Institute of Aeronautical and Space Law
and Commercial Aviation, Collection of Legal Studies, Vol. II, Medicinali-4, Madrid,
1978
 Márquez Lobillo, Patricia, “Air transportation and protection of personal data: special
consideration for passenger name records (PNR)”; “Denial of boarding in air passenger
transport, Marcial Pons, 2013;
 Ruiz de Velasco y del Valle, Adolfo. Commercial Law Manual. Madrid Spain. Comillas
Pontifical University. 2007. Third edition.
 Vicente y Gella, Agustín. Comparative Commercial Law Course. Spain. 1960. Fourth
edition
 Videla Escalada, Federico, Aeronautical Law, Zavalía Editores, Buenos Aires, 1973

Normative references

 General Congress of the United Mexican States. Maritime Navigation and Commerce
Law. DOF01-06-2006.
 United Nations. United Nations Convention on the Conditions of Registration of Ships.
Geneva, Switzerland. February 7, 1986.
 Presidency of the Republic of Guatemala. Government Decree 2946 Commercial Code

Electronics references

 International Convention for the Unification of Certain Rules on Bills of Lading, signed
in Brussels on August 25, 1924. Article 1. [Online] Consulted at:
http://www.iidmaritimo.org/wp-content/uploads/2011/03/10.-reglas_haya_1924.pdf
[Accessed: October 23, 2018]
 Legal Encyclopedia. http://www.enciclopedia-juridica.biz14.com/d/arrendamiento-de-
buques/arrenda miento-de-buques.htm. Consultation carried out on October 23, 2018.
 Legal Research Institute. Witker V, Jorge. UNAM. Ship use contracts in Mexican
maritime law. Mexico.
http://www.juridicas.unam.mx/publica/librev/rev/facdermx/cont/121/pr/pr11.pdf.
Consultation carried out on October 23, 2018.

Other references

 Lara Soto Manuel Ricardo, Maritime Law Contracts: Ship Construction, Leasing,
Chartering and Maritime Transportation of Goods, Guatemala, 2012, Thesis of the
Faculty of Legal and Social Sciences, Rafael Landívar University
 Luque Fernández, Álvaro (1976) The Transport Contract: Its classification. Final
Graduation Thesis, University of Costa Rica.