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A bill of lading (BL - sometimes referred to as BOL or B/L) is a
document issued by a carrier to a shipper, acknowledging
that specified goods have been received on board as cargo for
conveyance to a named place for delivery to the consignee
who is usually identified. A through bill of lading involves the
use of at least two different modes of transport from road,
rail,
air, and sea. The term derives from the verb "to lade" which
means to load a cargo onto a ship or other form of
transportation.
A bill of lading can be used as a traded object. The standard
short form bill of lading is evidence of the contract of
carriage of
goods and it serves a number of purposes:
It is evidence that a valid contract of carriage, or a
chartering contract, exists, and it may incorporate the full
terms of the
contract between the consignor and the carrier by reference
(i.e. the short form simply refers to the main contract as an
existing document, whereas the long form of a bill of lading (connaissement
intégral) issued by the carrier sets out all the
terms of the contract of carriage); It is a receipt signed by
the carrier confirming whether goods matching the contract
description have been received in good condition (a bill will be
described as clean if the goods have been received on board
in apparent good condition and stowed ready for transport); and
It is also a document of transfer, being freely transferable
but not a negotiable instrument in the legal sense, i.e. it
governs all the legal aspects of physical carriage, and, like a
cheque
or other negotiable instrument, it may be endorsed affecting
ownership of the goods actually being carried. This matches
everyday experience in that the contract a person might make
with a commercial carrier like FedEx for mostly airway parcels,
is separate from any contract for the sale of the goods to be
carried; however, it binds the carrier to its terms,
irrespectively
of who the actual holder of the B/L, and owner of the goods, may
be at a specific moment.
The BL must contain the following information:
Name of the shipping company;
Flag of nationality;
Shipper's name;
Order and notify party;
Description of goods;
Gross/net/tare weight; and
Freight rate/measurements and weighment of goods/total freight
While an Air Waybill (AWB) must have the name and address
of the consignee, a BL may be consigned to the order of the
shipper. Where the word order appears in the consignee box, the
shipper may endorse it in blank or to a named transferee.
A BL endorsed in blank is transferable by delivery. Once the
goods arrive at the destination they will be released to the
bearer or the endorsee of the original bill of lading. The
carrier's duty is to deliver goods to the first person who
presents
any one of the original BL. The carrier need not require all
originals to be submitted before delivery. It is therefore
essential
that the exporter retains control over the full set of the
originals till payment is effected or a bill of exchange is
accepted or
some other assurance for payment has been made to him. In
general, the importer's name is not shown as consignee.
The bill of lading has also provision for incorporating notify
party. This is the person whom the shipping company will notify
on arrival of the goods at destination. The BL also contains
other details such as the name of the carrying vessel and its
flag
of nationality, the marks and numbers on the packages in which
the goods are packed, a brief description of the goods,
the number of packages, their weight and measurement, whether
freight costs have been paid or whether payment of freight
is due on arrival at the destination. The particulars of the
container in which goods are stuffed are also mentioned in case
of
containerised cargo. The document is dated and signed by the
carrier or its agent. The date of the BL is deemed to be the
date of shipment. If the date on which the goods are loaded on
board is different from the date of the bill of lading then the
actual date of loading on board will be evidenced by a notation
the BL. In certain cases a carrier may issue a separate on
board certificate to the shipper.
Main types of bill
Straight bill of lading
In this importer/consignee/agent is named in the bill of lading,
it is called straight bill of lading. It is a document, in which
a
seller agrees to use a certain transportation to ship a good to
a certain location, where the bill assigned to a certain party.
It details to the quality and quantity of goods.
Order bill of lading
This bill uses express words to make the bill negotiable, e.g.
it states that delivery is
to be made to the further order of the consignee using words
such as "delivery to A Ltd. or to order or assigns".
Consequently, it can be indorsed (legal spelling of endorse,
maintained in all statute, including Bills of
Exchange Act 1909
(CTH)) by A Ltd. or the right to take delivery
can be transferred by physical delivery of the
bill accompanied by adequate
evidence of A Ltd.'s intention to
transfer.
Bearer bill of lading
This bill states that delivery shall be made to whosoever holds
the bill. Such bill may be
created explicitly or it is an order bill
that fails to nominate
the consignee whether in its original form or
through an endorsement in blank. A bearer bill can be
negotiated
by physical delivery.
Surrender bill of lading
Under a term import documentary credit the bank releases the
documents on receipt from
the negotiating bank but the importer
does not pay the bank
until the maturity of the draft under the relative
credit. This direct liability is called Surrender Bill of Lading
(SBL), i.e. when we hand over the bill of
lading we surrender title to the goods and our power of sale
over the goods.
A clean bill of lading states that the cargo has been
loaded on board the ship in apparent good order and condition.
Such a BL will not bear a clause or notation which expressively
declares a defective condition of goods and/or the
packaging.
Thus, a BL that reflects the fact that the carrier
received the goods in good condition. The opposite
term is a soiled bill of lading,
which reflects that the goods
are received by the carrier in anything but good condition.
Other terminology
A sea or air waybill is a non-negotiable receipt issued by
the carrier. It is most common in the container trade either
where the
cargo is likely to arrive before the formal documents
or where the shipper does not insist on separate bills
for every item of
cargo carried (e.g. because this is one of a
series of loads being delivered to the same consignee).
Delivery is made to the consignee who identifies himself. It is
customary in transactions where the shipper and
consignee are
the same person in law making the rigid production
of documents unnecessary.
The UK's Carriage of Goods by Sea Act 1992 creates a
further class of document known as a ship's delivery order which
contains an undertaking to carry goods by sea but is neither a
bill nor a waybill.
A straight bill of lading by land or sea, or sea/air waybill are
not documents that can convey title to the goods they
represent.
They do no more than require delivery of the goods to
the named consignee and (subject to the shipper's ability
to redirect
the goods) to no other. This differs from an "order"
or "bearer" bill of lading which are possessory title
documents and
negotiable, i.e. they can be endorsed and so
transfer the right to take delivery to the last endorsee.
|Nevertheless, bills of lading are "documents of title", whether
negotiable or not, under the terms of the Uniform
Commercial
Code. Definitions of "Document of Title" and "Bill of
Lading"
Multi-modal Transport Documents
The advent of unitisation in air and sea transportation
brought about many innovations in international transportation
of
goods.
Multi-modal or combined transport is one such innovation.
Cargo today can be moved from an inland freight station
in the
exporting country to an inland destination in the
importing country. Goods may be picked up and transported using
different
modes of transport. E.g. a consignment of garments may
be containerised at a factory in Mysore, customs cleared
at ICD
Bangalore, moved by rail to Cochin, by sea to Dubai, by
air to Frankfurt and road to Düsseldorf, all under a single
transport
document. In such an operation, involving one or more
land legs and/or air or sea legs, one carrier makes itself
responsible for
the entire transport operation. The contracting
carrier is referred to as a multi-modal or a combined transport
operator (MTO).
He is liable in contract to the shipper if the
goods are damaged at any stage of the carriage. The multi-modal
transportation
document may be issued either in non-negotiable
or negotiable form. The multi-modal transportation document
(MTD), whether
negotiable or non-negotiable, is prima facie
evidence of the MTO taking charge of the goods for
transportation.
MTDs are of two types, the COMBIDOC evolved by the Baltic
International Maritime Council (BIMCO) and FBL or FIATA MT Bill
of
Lading evolved by the International Federation of Freight
Forwarders' Associations (FIATA). This document (FBL) has been
approved by the International Chamber of Commerce (ICC) for the
purpose of documentary credit. FIATA has evolved specific
norms for the use of FBLs. Having seen what is covered by sea,
air and multimodal transport let us look at other modes
including
courier and charter movements. The ICC has a
publication called the Uniform Customs and Practices, UCP 500
(UCP 400 was the
earlier edition) which among other things deals
with various transport documents, including those we have
already looked at.
Articles 23 to 33 of the UCP 500 deal with
these documents.
A sample of the issues
In most national and international systems, a bill of lading
is not a document of title, and does no more than identify that
a
particular individual has a right to possession at the time when
delivery is to be made.
Problems arise when goods are found to have been lost or damaged
in transit, or delivery is delayed or refused. Because
the consignee is not a party to the contract of carriage, the
doctrine of privity of contract states that a third party
has no right to
enforce the agreement. However, whether this is
a problem to the consignee depends on who owns the
goods and who holds
the risks associated with the carriage. This
will be answered by examining the terms of all the relevant
contracts.
If the consignor has reserved title until payment is
made, the consignor can sue to recover his or her loss.
But if ownership
and/or the risk of loss has transferred to the
consignee, the right to sue may not be clear in contract,
although there could be
remedies in tort/delict (the issue of
risk will have been most carefully considered to decide who
should insure the goods during
transit). Hence, a number of
international Conventions and domestic laws specifically
address when a consignee has the right to
sue. The legal
solution most often adopted is to apply the principle of
subrogation, i.e. to give the consignee the same rights of
action held by the consignor. This enables most of the more
obvious cases of injustice to be avoided.
In the municipal law of the U.S., the issue and enforcement of
bills which may be documents of title, is governed by
Article 7 of
the Uniform Commercial Code. However, since bills
of lading are most frequently used in transborder, overseas
or airborne
shipping, the laws of whatever other countries are
involved in the transaction covered by a particular bill may
also be applicable
including the Hague Rules, the Hague-Visby
Rules and the Hamburg Rules at international level for
shipping, The Warsaw
Convention for the Unification of Certain
Rules for International Carriage by Air 1929 and The Montreal
Convention for the
Unification of Certain Rules for
International Carriage by Air 1999 for air waybills, etc. It is
customary for
parties to the bill to
agree both which country's courts shall
have the jurisdiction to hear any case in a forum selection
clause,
and the municipal
system of law to be applied in that case
choice of law clause. The law selected is termed the proper law
in
private international
law and it gives a form of
extraterritorial effect to an otherwise sovereign law, e.g. a
Chinese consignor
contracts with a Greek
carrier for delivery to a consignee based
in New York: they agree that any dispute will be referred to
the courts in New York
(since that is the most convenient place
— the forum conveniens) but that the New York courts will
apply Greek law as the lex
causae to determine the extent of the
carrier's liability.
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