Carriage of Goods under Bills of Lading and Similar Documents
| Author | Edgar Gold/Aldo Chircop/Hugh Kindred |
| Pages | 407-478 |
CHAPTER
9
CARRIAGE
OF
GOODS
UNDERBILLS
OF
LADING
AND
SIMILAR
DOCUMENTS
A.
KINDS
OF
LINER SHIPPING DOCUMENTS
1)
Introduction
As
explained
in the
last chapter,
the
delivery
of
goods
by sea is
processed
and
regulated
in
distinctly
different
ways determined
by the
nature
of the
cargo. While tramp ships carry goods, such
as raw
mate-
rials,
in
bulk
under
charterparties,
liner
vessels transport packaged
and
unitized goods, typically merchandise
and
processed products, under
bills
of
lading
and
similar documents. During
the
nineteenth
and
well
into
the
twentieth century,
the use of
bills
of
lading
to
process
the
car-
riage
of
goods
in
liner services
was
practically ubiquitous.
Informal
documents, such
as
mate's receipts,
and
delivery orders designating
individual shares
in a
cargo,
were also used
but
uncommonly.
Later
in
the
twentieth century, however,
the
advantageous advances
in
cargo
handling techniques, achieved
by the
introduction
of
containers,
and
in the
processing
of
transactions made possible
by the
application
of
computers
have transformed
the
carriage
of
goods
by
liner ships.
As a
result
of
these changes,
a
variety
of new
transport documents
has
been
developed
and put
increasingly into
use in
place
of
bills
of
lading.
These documents include
sea
waybills, which
are
simpler instruments
than
bills
of
lading,
and
combined transport documents,
which
are
used
for
through carriage
by sea and
multimodal movements.
In
addi-
407
408
MARITIME
LAW
tion these paper-based processes
are now in
progress
of
being trans-
formed
into
electronic documents.
While
the
variety
of
shipping documents used
in
liner services
has
increased
in
recent years,
the law
governing
all of
them
has
remained
substantially
the
same since 1924. Unlike
charterparties,
which have
been
left
to the
freedom
of the
contracting parties,
liner
services
have
been
the
subject
of
government regulation
for
over
a
century.
To
avoid
the
confusion that multiple national regimes would create,
an
interna-
tionally uniform
set of
rules, known
as the
Hague
Rules,
was
agreed
in
1924.l
These rules have been amended more than once
and
alternative
sets
of
rules have been agreed
but not
widely applied. Undoubtedly
a
new
internationally uniform regime that meets
the
needs
of
carriers
and
cargo owners operating modern containerized
traffic
by
stream-
lined
and
computerized processes
is
required.
The
ongoing
efforts
to
establish
such
a
regime
by
governmental agreement internationally
is
proving very
difficult.
Meanwhile Canada
applies2
an
amended version
of
the
Hague
Rules, known
as the
Hague-Visby
Rules.3
Accordingly,
this
chapter addresses
first
the
legal character
and
functions
of the
various
liner shipping documents, then
the
Canadian application
of the
inter-
national
Hague-Visby
Rules.
2)
Bills
of
Lading
A
bill
of
lading
is a
document used
in
international sales
to
process
the
delivery
of
goods
by
sea.
It is
widely employed
in
liner shipping
and on
chartered
ships
in
some trades.
Issued
by the
carrier
to the
shipper,
alias
consignor,
of the
goods,
it
traditionally
has
three
functions:4
• as
evidence
of the
contract
of
carriage,
• as a
receipt
by the
carrier
for the
goods
to be
carried,
and
• as a
document
of
title
to the
goods.
1 By the
International
Convention
for the
Unification
of
Certain Rules
of
Law
Relating
to
Bills
of
Lading,
25
August 1924,
120
L.N.T.S.
155
[Hague
Rules].
2
By the
Marine
Liability
Act,
S.C. 2001, c.6, Part
5 &
Sch.
3.
3
Protocol
to
Amend
the
International
Convention
for the
Unification
of
Certain Rules
of
Law
Relating
to
Bills
of
Lading, 1924,
23
February 1968, 1412 U.N.T.S. 121,
U.K.T.S.
1977
No.83.
See
Appendix
1,
Hague-Visby
Rules,
as
enacted
by the
Canadian
Marine
Liability
Act, ibid.
4 See
Canadian
General
Electric
v.
Armateurs
du St.
Laurent
Inc. (The
Maurice
Des-
gagnes),
[1977]
1 EC. 215
[Canadian
General
Electric];
and the
definition
of a
bill
of
lading
in the
Hamburg
Rules,
art.
1(7) enacted
in the
Marine
Liability
Act,
above note
2,
Sch.4.
Carriage
of
Goods
Under
Bills
of
Lading
and
Similar
Documents
409
Early
bills
of
lading were merely receipts
for
goods received
by a
carri-
er.
Progressively conditions
of
carriage were included
in
them, espe-
cially
as
standard
form
contracts became prevalent. Their status
as
documents
of
title
was
eventually accepted
by the
common
law in
1782
when
the
commercial practice
of
negotiating
the
shipper's right
to the
goods
by
endorsing
the
bill
of
lading
in
favour
of the
consignee
or
pur-
chaser
was
recognized
in the
case
of
Lickbarww
v.
Mason.5
Its
status
as a
negotiable document
of
title
is
what distinguishes
the
ordinary ocean
bill
of
lading
from
all
other documents used
to
process
carriage
transactions,
in
particular road
and
rail bills
of
lading, non-
negotiable bills
of
lading
—
sometimes called "straight bills"
in the
United States
— sea
waybills, dock receipts,
and
delivery orders.
The
cases
do not so
much
define
a
bill
of
lading
as
describe
its
three
func-
tions
and
list
its
typical contents.
The
usual indications
on the
docu-
ment
are its
title
of
negotiable
bill
of
lading
and its
directions
to
deliver
the
goods
to the
named consignee
"or to
order."6
Transport documents
that
do not
bear this time-honoured phrase
are not
likely
to be
docu-
ments
of
title
but, rather, non-negotiable documents representing only
receipt
of the
goods
and the
terms
of
their
carriage.
The
form
of a
bill
of
lading
now
follows
a
fairly
standardized two-
page
format
in
which
all the
details
of the
particular cargo
and its
car-
riage
are
entered
on the
front,
and the
shipping company's standard
trading terms appear
in
fine
print
on the
back.
At the
foot
of the
first
page,
just above
the
signature line, there
is
generally
a
statement that
incorporates
the
clauses
on the
back
of the
form
as
part
of the
opera-
tive
conditions
of
carriage. Some shortforrn
or
blank-backed
bills
of
lading omit
the
printed clauses
and
instead incorporate
the
carrier's
standard terms
by
reference
to
them
at
their business premises.
The
fine-print clauses
of a
typical
bill
of
lading
are
numerous
and
extensive.
They
set out the
carrier's standard trading conditions
as
they vary
his
or
her
implied common
law
undertakings while
reflecting
the
manda-
tory obligations
of the
Hague-Visby
Rules.
The
clauses usually deal with
the
following range
of
matters:
•
application
of the
Hague
or
Hague-Visby
Rules
(paramount
clause),
•
non-responsibility
for
cargo
before
loading
and
after
discharge,
•
non-responsibility
for
deck cargo
and
live animals,
•
containerized
cargo,
5
[1794]
5 T. R.
367,
101
E.R. 206.
6
Henderson
& Co. v.
Comptoir
d'Escompte
de
Paris
(1873), L.R.
5 EC.
253;
Canadi-
an
General
Electric,
above
note
4; see
also
Hamburg
Rules,
above
note
4,
art.1(7).
To continue reading
Request your trial