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Bill of lading

A bill of lading (sometimes abbreviated as B/L or BoL) is a document issued by a carrier (or their agent) to acknowledge receipt of cargo for shipment. Although in England, the term once related only to carriage by sea, a bill of lading may be used for any type of carriage of goods.[1]

Bills of lading are one of three crucial documents used in international trade to ensure that exporters receive payment and importers receive the merchandise.[2] The other two documents are a policy of insurance and an invoice.[3] Whereas a bill of lading is negotiable, both a policy and an invoice are assignable. In international trade outside the United States, bills of lading are distinct from waybills in that the latter are not transferable and do not confer title. Nevertheless, the UK Carriage of Goods by Sea Act 1992 grants "all rights of suit under the contract of carriage" to the lawful holder of a bill of lading, or to the consignee under a sea waybill or a ship's delivery order.

A bill of lading must be transferable,[4][5] and serves three main functions:

  • it is a conclusive receipt,[6] i.e. an acknowledgement that the goods have been loaded;[7] and
  • it contains or evidences[8] the terms of the contract of carriage; and
  • it serves as a document of title to the goods,[9] subject to the nemo dat rule.

Typical export transaction use INCOTERMS terms such as CIF, FOB or FAS, requiring the exporter/shipper to deliver the goods to the ship, whether onboard or alongside. Nevertheless, the loading itself will usually be done by the carrier himself or by a third party stevedore; (see Scruttons Ltd v Midland Silicones Ltd and NZ Shipping Co Ltd v A M Satterthwaite & Co Ltd - The Eurymedon).

Contents

DescriptionEdit

A bill of lading is a standard-form document that is transferable by endorsement (or by lawful transfer of possession).[10] Most shipments by sea are covered by the Hague Rules, the Hague-Visby Rules or the Hamburg Rules, which require the carrier to issue the shipper a bill of lading identifying the nature, quantity, quality and leading marks[11] 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.

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 Rules come into force) it remains to be seen whether shippers, carriers and "maritime performing parties" (another new Rotterdam Rules coinage) will abandon the long-established and familiar term, "bill of lading".

HistoryEdit

While there is evidence of the existence of receipts for goods loaded aboard merchant vessels stretching back as far as Roman times,[12] 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[13]) 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 ladingEdit

As cargo receiptEdit

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,[14]especially under INCOTERMS such as CFR[15] (cost and freight) and FOB (free on board).

Although the Hague-Visby Rules provide that a bill of lading is only prima facie evidence of receipt, the Carriage of Goods by Sea Act 1992 s.4 declares a BoL "conclusive evidence of receipt".[16][17][18]

  • A "clean bill of lading" (aka "on-board bill of lading") is used when there is full compliance with no discrepancies between the description filed by shipper and the actual goods shipped. A clean bill of lading indicates that the goods have been properly loaded on board the carrier's ship in accordance with the contract.
  • A "dirty bill of lading" (aka "claused bill of lading") will be issued if the goods to be shipped differ in quality or quantity from the contract description, or if freight has yet to be paid. The buyer's bank is entitled to reject a dirty bill of lading, but will often accept it after an agreed reduction in price.[19]
  • "STC": if the cargo cannot be effectively examined, such as goods in a sealed container), the carrier will issue a bill of lading describing the goods as "container (identified by number) said to contain" the contracted cargo. If the cargo within the contain do not ply with description, the consignee will take action against the seller, and the carrier will not be involved.

As evidence of the contract of carriageEdit

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. In this case, the bill of lading can be used if shipper does not properly ship the goods then 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.[18] 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 titleEdit

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 ladingEdit

Bills of lading may take various forms, such as on-board and received-for-shipment.[20]

  • 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.[21]
 
Charter-party bill of lading, for a sulfuric acid bulk cargo
  • 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.[19]

Bills of lading and charterparties comparedEdit

A charterparty is the contract governing 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. When the master (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.[22]

Sea waybills and electronic data interchange (EDI)Edit

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. (If a so-called bill of lading is declared to be "non-negotiable", then it is not a true B/L,[23] and instead will be treated as a sea waybill.)

The main difference between these two documents is that the waybill gives the bearer the right to possession of the cargo, but does not confer title in the goods. 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.

For some time, it has been the case that the cargo may arrive at the destination before the bill of lading; and a practice has arisen for the shipper (having sent the bill of lading to the banks for checking) to send to the consignee a letter of indemnity (LOI) which can be presented to the carrier in exchange for the cargo. The LOI indemnifies the carrier against any cargo claim, but the document is not transferable and has no established legal status. 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.

Electronic bills of ladingEdit

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.[24] An electronic bill of lading (or eB/L) is the legal and functional equivalent of a paper bill of lading.[25] 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.[26]

The UK Carriage of Goods Act 1992 s.1(5) enables the trade minister to make regulations for electronic transactions. As yet, no such regulations have been made, as electronic interchange is already lawful. Electronic "clubs" such as BOLERO[27] have been quite successful, but the maritime trade community is traditional and loath to move away from paper transactions, so progress has been very slow. However, in recent times, it has been proposed that Blockchain technology may be the answer to cover the myriad steps in an export trade transaction, thereby enabling electronic transactions and information transfer that is both speedy and reliable.

NameEdit

The word "lading" means "loading", both words being derived from the Old English word hladan.[28] "Lading" specifically refers to the loading of cargo aboard a ship.[29] 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.

Under English law, the Carriage of Goods by Sea Act 1992 provides that the term "bill of lading" includes a "received-for-shipment" bill of lading issued by, say, a freight forwarder or a storage depot/warehouse. A "combined bill of lading" may be issued by a carrier who, say, collects goods from a factory for subsequent delivery to a ship via multi-modal transport.

How to recognize a valid international bill of ladingEdit

The table below explains how to recognize a valid BOL for most international shipping companies, including the SCAC:

Carrier SCAC + Master BOL ExamplesHHYHG
Cosco (CCLU, CSLU, COSU or CBHU) 10 Numbers CCLU1234567890
Evergreen EGLV(12 Numbers) EGLV123456789012
OOCL OOLU(10 Numbers) OOLU1234567890
Matson MATS(10 Numbers) MATS1234567890
Maersk MAEU or MRKU(9 Numbers) MAEU123456789
K-Line KKLU AA(A or 1)(Followed by 6 Numbers) KKLUAAA123456
MSC MSCU A(A or 1) (Followed by 6 Numbers) MSCUAA123456
Hapag-Lloyd HLCU AA(A or 1) (Followed by 9 NumGbers) HLCUAAA123456789
CMA CGM (CMAU or CMDU) AAA (Followed by 7 Numbers) CMAUAAA1234567
Hyundai HMDU AAAA (Followed by 7 Numbers) HMDUAAAA1234567
NYK NYKS AAAA (Followed by 8 Numbers) NYKSAAAA12345678
Yang Ming YMLU(E, B, T or W) (Followed by 9 Numbers) YMLUE123456789
UASC Lines UASUAAAAA (Followed by 6 Numbers) UASUAAAAA123456
ZIM ZIMU or SSPH AAA (Followed by 4-7 Numbers) ZIMUAAA1234567
MOL MOLU (11 Numbers)A MOLU12345678901A
Hamburg Süd SUDU55555(7-Alphnumeric) SUDU12345AAAAAAA
APL APLU(Sometimes has a 0) (Followed by 8 Numbers) APLU012345678
Hyundai QSWB ( followed by 7 numbers) QSWB6444089
Hyundai HDMU followed by 4 letters(YNKU) and 7 numbers HDMU YNKY1241556
SM Lines (SMLM) + 4letters + 8 Numbers SMLMNJPE70038700
Turkon Lines TRKU + 6 letters + 6 numbers TRKUMERNYC054228
Maruba MRUB + 6 letters (POLPOD) + 6 numbers (YYNNNN) MRUBBUEHKG180001

See alsoEdit

ReferencesEdit

NotesEdit

  1. ^ Carriage of Goods by Sea Act 1992 s.1(2)b
  2. ^ "UNCTAD" (PDF). unctad. unctad.
  3. ^ In a CIF contract, the buyer is essentially buying three documents, all of which grant rights over the cargo
  4. ^ Carriage of Goods by Sea Act 1992 s.1(2)
  5. ^ If a so-called "bill of lading" is NOT transferable, it will be merely a sea-waybill or a ship's delivery order
  6. ^ Carriage of Goods by Sea Act 1992 s.4
  7. ^ ... or received for shipment
  8. ^ "Evidences": the contract may already have been made informally by say, booking cargo space on board.
  9. ^ Levi, Maurice D. (2005). International Finance, 4th Edition. New York, NY: Routledge. ISBN 978-0-41-530900-4.
  10. ^ Bohra, Harsh. International Trade and Finance. Wide Vision.
  11. ^ that is, the identification marks and numbers.
  12. ^ "THE EVOLUTION OF THE BILL OF LADING SF du Toit (University of Johannesburg)" (PDF). pp. 2–3.
  13. ^ "BILL OF LADING" (PDF). Archived from the original (PDF) on 2014-05-30.
  14. ^ 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).
  15. ^ CFR - formerly known as C&F
  16. ^ s.4 thereby overrules the decision in Grant v Norway 1851 10 CB 665
  17. ^ Law Commission report into "Rights of Suit in respect of Carriage of Goods by Sea", LAW COM No 196 1991
  18. ^ a b Mayer, Ray August ; with revisions by Don; Bixby, Michael (2013). International business law : text, cases, and readings (6th ed., international ed.). Harlow [etc.]: Pearson. ISBN 0273768611.
  19. ^ a b Buckley, Adrian (2004). Multinational Finance. Harlow, UK: Pearson Education Limited. ISBN 978-0-27-368209-7.
  20. ^ 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"
  21. ^ ... but there is no legal advantage to this exercise.
  22. ^ 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
  23. ^ s.1 Carriage of Goods by Sea Act 1992
  24. ^ Section 1(5) of the UK's Carriage of Goods by Sea Act 1992 empowers the minister to make such provisions.
  25. ^ "PAPERLESS TRADING (ELECTRONIC BILLS OF LADING) ‐Frequently asked questions ("FAQs") - UK P&I". Ukpandi.com. 2013-07-30. Retrieved 2014-07-31.
  26. ^ "Electronic Bills of Lading (eB/Ls)". Essdocs.com. Retrieved 2014-07-31.
  27. ^ BOLERO
  28. ^ "Online Etymology Dictionary".
  29. ^ "Definition of lading in English". Oxford University Press. Retrieved 2015-09-12.

External linksEdit