Bill of lading

Bill of lading

A bill of lading (sometimes abbreviated as B/L or BoL) is a document issued by a carrier (or his agent) to acknowledge receipt of cargo for shipment. In British English the term relates to ship transport only, in American English to any type of transportation of goods[citation needed].

A bill of lading must be negotiable,[1][2] and serves three main functions:

Bills of lading are one of three crucial documents used in international trade to ensure that exporters receive payment and importers receive the merchandise.[7] The other two documents are a policy of insurance and an invoice.[8] Whereas a bill of lading is negotiable, both a policy and an invoice are assignable.

Description

A bill of lading is a standard-form document that is transferable by endorsement (or by lawful transfer of possession).[9] Most shipments by sea are covered by the Hague Rules, the Hague-Visby Rules or the Hamburg Rules, which require that the carrier MUST issue to the shipper a bill of lading identifying the nature, quantity, quality and leading marks[10] of the goods.

In the case of Coventry v Gladstone, Lord Justice Blackburn defined a bill of lading as "A writing signed on behalf of the owner of ship in which goods are embarked, acknowledging the receipt of the Goods, and undertaking to deliver them at the end of the voyage, subject to such conditions as may be mentioned in the bill of lading." Therefore, it can be stated that the bill of lading was introduced to provide a receipt to the shipper in the absence of the owners.

History

While there is evidence of the existence of receipts for goods loaded aboard merchant vessels stretching back as far as Roman times,[11] and the practice of recording cargo aboard ship in the ship's log is almost as long-lived as shipping itself, the modern bill of lading only came into use with the growth of international trade in the medieval world.

The growth of mercantilism (which produced other financial innovations such as the charterparty (once carta partita), the bill of exchange and the insurance policy[12]) produced a requirement for a title document that could be traded in much the same way as the goods themselves. It was this new avenue of trade that produced the bill of lading in much the same form as we know today.

Although the term "bill of lading" is well-known and well-understood, it may become obsolete. Articles 1:15 & 1:16 of the Rotterdam Rules create the new term "transport document"; but (assuming the Rotterdam Rules come into force) it remains to be seen whether shippers, carriers and "maritime performing parties" (another new Rotterdam Rules coinage) will abandon the familiar term "bill of lading".

Roles and purposes of bill of lading

As cargo receipt

The principal use of the bill of lading is as a receipt issued by the carrier once the goods have been loaded onto the vessel. This receipt can be used as proof of shipment for customs and insurance purposes, and also as commercial proof of completing a contractual obligation,[13] especially under Incoterms such as CFR (cost and freight) and FOB (free on board).

There are two types where bill of lading can be used as carrier's receipt for goods.[14] The first is on board bill of lading, also known as clean bill of lading. Clean bill of lading is used when there is no discrepancy between description filled by shipper and the actual goods shipped on board. Clean bill of lading indicates that the goods have been properly loaded on board the carrier's ship according to the prima facie evidence. If the carrier finds out that the bill of lading is different from goods on board, one can provide contradictory evidence on clean bill of lading. It is valid as long as in the hand of the carrier, but once it is transferred and negotiated to the third party, it cannot be rebutted and the carrier cannot no longer mark discrepancy. The second is claused bill of lading. Claused bill of lading is used when there is some discrepancy between description in the bill of lading and the actual goods. For claused bill of lading, one can mark only when the goods are loaded.

As evidence of the contract of carriage

The bill of lading from carrier to shipper can be used as an evidence of the contract of carriage by the fact that carrier has received the goods and upon the receipt the carrier would deliver the goods. In this case, the bill of lading would be used as a contract of carriage. Also, the bill of lading can perform as a contract of a carriage. In this case, the bill of lading can be used if shipper does not properly ship the goods than the shipper cannot receive the bill of lading from the carrier. Eventually, the shipper would have to deliver the bill of lading to the seller. In this case, the bill of lading is used as a contract of carriage between seller and carrier. However, when the bill of lading is negotiated to a bona fide third party then the bill of lading becomes a conclusive evidence where no contradictory evidence can be introduced. It is because the third party cannot examine the actual shipment and can only pay attention to the document itself, not survey or examination of the shipment itself.[14] However, the bill of lading will rarely be the contract itself, since the cargo space will have been booked previously, perhaps by telephone, email or letter. The preliminary contract will be acknowledged by both the shipper and carrier to incorporate the carrier's standard terms of business. If the Hague-Visby Rules apply, then all of the Rules will be automatically annexed to the bill of lading, thus forming a statutory contract.

As title

When the bill of lading is used as a document of title, it is particularly related to the case of buyer. When the buyer is entitled to received goods from the carrier, bill of lading in this case performs as document of title for the goods. There are two types of bill of lading that can perform as document of title. They are straight bill of lading and order bill of lading. Straight bill of lading is a bill of lading issued to a named consignee that is not negotiable. In this case, the bill of lading should be directed only to one specific consignee indicated on the bill of lading. Order bill of lading is the opposite from a straight bill of lading and there is no specific or named consignee. Therefore, an order bill of lading can be negotiated to a third party.

Simply, the bill of lading confers prima facie title over the goods to the named consignee or lawful holder. Under the "nemo dat quod non habet" rule ("no one gives what he doesn't have"), a seller cannot pass better title than he himself has; so if the goods are subject to an encumbrance (such as a mortgage, charge or hypothec), or even stolen, the bill of lading will not grant full title to the holder.

Types of bills of lading

Bills of lading may take various forms, such as on-board and received-for-shipment.[15]

Charter-party bill of lading
Charter-party bill of lading, for a sulfuric acid bulk cargo

"Claused" bills of lading

A bill of lading that denotes that merchandise is in good condition upon being received by the shipping carrier is referred to as a "clean" bill of lading, while a bill of lading that denotes that merchandise has incurred damage prior to being received by the shipping carrier would be known as a "foul" or "claused" bill of lading. A claused bill of lading will have a statement (clause) written onto the bill of lading noting down any damage or other issues. Letters of credit usually will not allow for foul bills of lading,[17] and the buyer is not obliged to accept any bill of lading that is not clean.[18]

Bills of lading and charterparties compared

A charterparty governs the relationship between the shipowner and the charterer. The bill of lading governs the relationship between the shipper and the carrier (who will be either a shipowner or a demise charterer). If the exporter (the shipper) is shipping a small amount of cargo, he will arrange for a carrier to carry the goods for him, using a bill of lading. If the exporter needs the whole (or a very substantial part) of the ship's cargo capacity, the exporter may need to charter the vessel, and he will enter into a charterparty agreement with the shipowner.

If the charter party is a time or voyage charterparty, the shipowner will still have control of the ship and its crew. If there is a demise (or "bareboat") charterparty, the charterer will effectively have a long lease and will have full control of the vessel. If the master (the captain) issues a B/L to a shipper, he will be acting as an agent for the carrier, who will be either the shipowner (time or voyage) or the charterer (demise).

In a time-charterparty or voyage-charterparty, if the charterer is shipping his own cargo (rather than the cargo of a third party) he will receive a bill of lading from the master, acting as agent of the shipowner; but that B/L will serve solely as a receipt and document of title, and its terms will (subject to contrary intent) be secondary to the terms of the charterparty, which remains the dominant contract.[19]

Sea waybills and electronic data interchange (EDI)

Under Art. III of the Hague-Visby Rules, a carrier must, on demand, provide the shipper with a bill of lading; but if the shipper agrees, a lesser document such as a "sea waybill" may be issued instead. In recent years, the use of bills of lading has declined, and they have tended to be replaced with the sea waybill.

The main difference between these two documents is that the waybill does not confer title of the goods to the bearer, and as a result there is no need for the physical document to be presented for the goods to be released. The carrier will automatically release the goods to the consignee once the import formalities have been completed. This results in a much smoother flow of trade, and has allowed shipping lines to move towards electronic data interchange which may greatly ease the flow of global trade.

However, for letter of credit and documentary collection transactions, it is important to retain title to the goods until the transaction is complete. This means that the bill of lading still remains a vital document within international trade.

If a so-called bill of lading is declared to be "non-negotiable", then it is not a true B/L,[20] and instead will be treated as a sea waybill.

Electronic bill of lading

For many years, the industry has sought a solution to the difficulties, costs and inefficiencies associated with paper bills of lading. One answer is to make the bill an electronic document.[21] An electronic bill of lading (or eB/L) is the legal and functional equivalent of a paper bill of lading.[22] An electronic bill of lading must replicate the core functions of a paper bill of lading, namely its functions as a receipt, as evidence of or containing the contract of carriage and as a document of title.[23]

Name

The word "lading" means "loading", both words being derived from the Old English word hladan.[24] "Lading" specifically refers to the loading of cargo aboard a ship[25] (despite the etymology, "bills of loading" is not a synonym for "bills of lading"). The Dutch word "lading" has exactly the same meaning (freight, cargo, an amount of transportable goods) as it has in the English "Bill of lading", but is not restricted to shipping.

See also

External links

References

Notes

  1. ↑ Carriage of Goods by Sea Act 1992 s.1(2)
  2. ↑ If a so-called "bill of lading" is NOT negotiable, it will be merely a sea-waybill or a ship's delivery order
  3. ↑ Carriage of Goods by Sea Act 1992 s.4
  4. ↑ ... or received for shipment
  5. ↑ The contract may already have been made informally by say, booking cargo space on board.
  6. ↑ Levi, Maurice D. (2005). International Finance, 4th Edition. New York, NY: Routledge. ISBN 978-0-41-530900-4.
  7. ↑ "UNCTAD" (PDF). unctad. unctad.
  8. ↑ In a CIF contract, the buyer is essentially buying three documents, all of which grant rights over the cargo
  9. ↑ Bohra, Harsh. International Trade and Finance. Wide Vision.
  10. ↑ that is, the identification marks and numbers.
  11. ↑ "THE EVOLUTION OF THE BILL OF LADING SF du Toit (University of Johannesburg)" (PDF). pp. 2–3.
  12. ↑ "BILL OF LADING" (PDF).
  13. ↑ Qais Ali Mahafzah, The Legal Effectiveness of the Both-to-Blame Collision Clause under Bills of Lading and Charterparties, 41 Journal of Maritime Law & Commerce 263 (2010).
  14. 1 2 Mayer, Ray August ; with revisions by Don; Bixby, Michael (2013). International business law : text, cases, and readings (6th ed., international ed. ed.). Harlow [etc.]: Pearson. ISBN 0273768611.
  15. ↑ The Carriage of Goods by Sea Act 1992 s.1(2) provides that a bill of lading may be a "received for shipment bill of lading"
  16. ↑ ... but there is no legal advantage to this exercise.
  17. 1 2 Buckley, Adrian (2004). Multinational Finance. Harlow, UK: Pearson Education Limited. ISBN 978-0-27-368209-7.
  18. ↑ The buyer may, however, renegotiate the deal for a lesser sum.
  19. ↑ see: Sandeman v Scurr (1866) L.R. 2 Q.B. 86, Manchester Trust v Furness [1895] 2 QB 282 & [1895] 2 QB 539, & The Draupner [1910] AC 450
  20. ↑ s.1 Carriage of Goods by Sea Act 1992
  21. ↑ Section 1(5) of the UK's Carriage of Goods by Sea Act 1992 empowers the minister to make such provisions.
  22. ↑ "PAPERLESS TRADING (ELECTRONIC BILLS OF LADING) ‐Frequently asked questions ("FAQs") - UK P&I". Ukpandi.com. 2013-07-30. Retrieved 2014-07-31.
  23. ↑ "Electronic Bills of Lading (eB/Ls)". Essdocs.com. Retrieved 2014-07-31.
  24. ↑ "Online Etymology Dictionary".
  25. ↑ "Definition of lading in English". Oxford University Press. Retrieved 2015-09-12.
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