Bill of lading
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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 a shipment of cargo.
A bill of lading must be negotiable,[1][2] and serves three main functions:
- it is a conclusive receipt,[3] i.e. an acknowledgement that the goods have been loaded;[4] and
- it contains or evidences[5] the terms of the contract of carriage; and
- it serves as a document of title to the goods,[6] subject to the nemo dat quod non habet rule.
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. Whereas a bill of lading is negotiable, both a policy and and invoice are assignable.
Description
A bill of lading is a standard-form document that is transferable by endorsement (or by lawful transfer of possession).[8] Most shipments by sea are covered by the 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[9] 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."
History
While there is evidence of the existence of receipts for goods loaded aboard merchant vessels stretching back as far as Roman times,[10] 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[11]) 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,[12] especially under Incoterms such as CFR (cost and freight) and FOB (free on board).
As evidence of the contract of carriage
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
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.[13]
- An on-board bill of lading denotes that merchandise has been physically loaded onto a shipping vessel, such as a freighter or cargo plane.
- A received-for-shipment bill of lading denotes that merchandise has been received, but is not guaranteed to have already been loaded onto a shipping vessel. (Typically, it will be issued by a freight-forwarder at a port or depot). Such bills can be converted upon being loaded.[14]
- A straight bill of lading is used when payment has been made in advance of shipment and requires a carrier to deliver the merchandise to the appropriate party.
- An order bill of lading is used when shipping merchandise prior to payment, requiring a carrier to deliver the merchandise to the importer, and at the endorsement of the exporter the carrier may transfer title to the importer. Endorsed order bills of lading can be traded as a security or serve as collateral against debt obligations.[15]
"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.[15]
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. The "carrier" will be the shipowner (time or voyage) or the charterer (demise).
If a shipowner issues a B/L to the charterer, the document will be merely a receipt for the goods, as the charterparty will be the dominant document.
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,[16] 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. The obvious answer is to make the bill an electronic document. Electronic bill of lading or eB/L is the legal and functional equivalent of a paper bill of lading.[17]
An electronic bill of lading (eB/L) must clearly 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, if negotiable, as a document of title.[18]
Name
The word "lading" means "loading", both words being derived from the Old English word hladan.[19] "Lading" specifically refers to the loading of cargo aboard a ship[20] (despite the etymology, "bills of loading" is not a synonym for "bills of lading").
See also
External links
- William W. Porter, A Treatise on the Law of Bills of Lading (Philadelphia: Kay and Brothers, 1891)
References
Notes
- ^ Carriage of Goods by Sea Act 1992 s.1(2)
- ^ If a so-called "bill of lading" is NOT negotiable, it will be merely a sea-waybill or a ship's delivery order
- ^ Carriage of Goods by Sea Act 1992 s.4
- ^ ... or received for shipment
- ^ The contract may already have been made informally by say, booking cargo space on board.
- ^ Levi, Maurice D. (2005). International Finance, 4th Edition. New York, NY: Routledge. ISBN 978-0-41-530900-4.
- ^ "UNCTAD" (PDF). unctad. unctad.
- ^ Bohra, Harsh. International Trade and Finance. Wide Vision.
- ^ that is, the identification marks and numbers.
- ^ "THE EVOLUTION OF THE BILL OF LADING SF du Toit (University of Johannesburg)" (PDF). pp. 2–3.
- ^ "BILL OF LADING" (PDF).
- ^ 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).
- ^ 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"
- ^ ... but there is no legal advantage to this exercise.
- ^ a b Buckley, Adrian (2004). Multinational Finance. Harlow, UK: Pearson Education Limited. ISBN 978-0-27-368209-7.
- ^ s.1 Carriage of Goods by Sea Act 1992
- ^ "PAPERLESS TRADING (ELECTRONIC BILLS OF LADING) ‐Frequently asked questions ("FAQs") - UK P&I". Ukpandi.com. 2013-07-30. Retrieved 2014-07-31.
- ^ "Electronic Bills of Lading (eB/Ls)". Essdocs.com. Retrieved 2014-07-31.
- ^ "Online Etymology Dictionary".
- ^ "Definition of lading in English". Oxford University Press. Retrieved 2015-09-12.
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