Bill of Lading and Functions

A bill of lading is a document issued by or on behalf of a carrier of goods by sea to the person with whom he has contracted for the carriage of goods [1] . In the early Middle Ages the bill of lading was used as a form of “on board” record of the goods and by the eighteenth century, where owners could no longer travel with the goods to their destination, the bill became negotiable by indorsement to any third party. [2] The case when the court recognized the bill as a document of title was the Lickbarrow v Mason and in particular judge, Bowen L.J. said: “A cargo at sea while in the hands of the carrier is necessarily incapable of physical delivery. During this period of transit and voyage, the bill of lading by the law merchant is universally recognized as its symbol, and the indorsement and delivery of the bill of lading operates as a symbolical delivery of the cargo. Property in the goods passes by such indorsement and delivery of the bill of lading, whenever it is the intention of the parties that the property should pass, just as under similar circumstances the property would pass by an actual delivery of the goods. It is the key which, in the hands of the rightful owner, is intended to unlock the door of the warehouse, floating or fixed, in which the goods may chance to be” [3] .

The bill of lading has three functions. First, it is used as a receipt that the goods have been shipped or received for shipment. Secondly, it is evidence of the contract of carriage and treated by the law as the actual contract once it has been indorsed to a third party [4] and thirdly, it is a document of title to the goods. This last function entitles the holder of the bill of lading, who at the same time is the owner of the goods, to sell the goods while they are still in transit to any third party simply by indorsing the bill of lading and delivering it to a third party. Moreover, the bill of lading can be used as a document of title only if it is negotiable, i.e. able to be transferred to any third party simply by delivery or indorsement. However, it must be stated that a bill of lading is not a truly negotiable instrument in the full legal sense [5] and when “stamped” as a negotiable bill of lading what is really meant is that it is transferable by indorsement and delivery. A negotiable instrument describes a document which can give to a transferee a better title than that possessed by a transferor [6] .Thus, a bill of lading, like a bill of exchange, may be made out to a named consignee or his order or assigns, but a bona fide transferee gets no better title to the goods covered by the bill than was held by the transferor [7] . In practice, a substantial number of carriers issue negotiable bills of lading, principally because these are required as security under a letter of credit (or other financing arrangement) and because they are often requested or suggested by the seller or shipper because it is intended that the goods should be sold during transit [8]

Problem arises with the fact that there is no exact definition of the bill of lading in the Hague,Hague-Visby Rules.The statute states that applies to “contracts of carriage covered by a bill of lading or any similar document of title, in so far as such document relates to the carriage of goods by sea …” [9] , but no one was sure whether it meant only order bills of lading and documents of title at common law in general or it would include straight bills of lading,until Rafaela s. Whereas, in the Hamburg Rules it is made clear that all types of bill of lading(straight bills included) are considered documents,as we can see from the definition of the bill of lading:“means a document which evidences a contract of carriage by sea and the taking over or loading of the goods by the carrier, and by which the carrier undertakes to deliver the goods against surrender of the document. A provision in the document that the goods are to be delivered to the order of a named person, or to order, or to bearer, constitutes such an undertaking.” [10] and “Contract of carriage by sea” means any contract whereby the carrier undertakes against payment of freight to carry goods by sea from one port to another [11] .Last but not least, the Carriage of Goods by Sea Act ,who replaced the the Bills of Lading Act 1855,applies to “any bill of lading, any sea waybill and any ship’s delivery order” [12] ,excluding though “references to a document which is incapable of transfer either by indorsement or, as a bearer bill, by delivery without indorsement” [13]

Thus, it must be an “order” bill, i.e. made out to a named consignee or his “order or assigns”, and not a “straight” bill, i.e. made out to a named consignee.straight bill are not transferable by indorsement

A straight,110 or non-negotiable, bill of lading is one made out to a named consignee which omits the words “negotiable”, or “to order”, or “order or assigns”111 on its face. Alternatively, in place of the non-inclusion of these words, there may appear words which negative transferability, such as “non transferable” or “not negotiable”

Sanders Bros v Maclean & Co

The appearance, on the commercial scene, of straight bills of lading is shrouded in some uncertainty. Although it seems that straight bills of lading were not wholly disregarded by the drafters of the Hague Rules in 1924,

Kum v Wah Tat Bank [1971]

It has never been authoritatively settled, at least as a matter of English law,119 whether a straight bill of lading is a document of title, in the common law sense

Sanders Bros v Maclean & Co,

This was articulated by Lord Devlin in Kum v Wah Tat Bank :

“The bill of lading obtains its symbolic quality from the custom found in Lickbarrow v Mason and that is a custom which makes bills of lading “negotiable and transferable” by endorsement and delivery or transmission. … There appears to be no authority on the effect of a non-negotiable bill of lading. This is not surprising. When consignor and consignee are also seller and buyer, as they most frequently are, the shipment ordinarily serves as delivery … and also as an unconditional appropriation of the goods … which passes the property. So as between seller and buyer it does not usually matter whether the bill of lading is a document of title or not …

i.e. rights of general property (or title to the goods): see Borealis AB v Stargas Ltd (The Berge Sisar) [2002] 2 A.C. 205, at [22] (per Lord Hobhouse).

Latterly, Tuckey L.J. in Parsons Corp v CV Scheepvaartonderneming Happy Ranger (The Happy Ranger) 122 declined to be drawn on the question, which was “not an easy point”, and which should be decided in a case where it arises and initially at first instance rather than on appeal.123 He went on to say that “it would be unwise to assume that the statements in the text books are correct.

In The Rafaela S, a case to which we will return, Rix L.J. appeared to indicate, obiter, that a straight bill of lading was a document of title, even in the absence of any express provision in the bill of lading which required that it should be presented to obtain delivery of the goods.125 However, that point was not taken up subsequently by the House of Lords, except very indirectly.126 Consequently, it is submitted that this point is still at large and awaits further consideration by the courts.

See Diamond Alkali Export Corp v Fl Bourgeois [1921] 3 K.B. 443.e.g. p.86, n.4 above, at [24] (per Lord Bingham) and at [51] (per Lord Steyn): “I found the analysis of Rix L.J. in his comprehensive judgment entirely convincing. I would affirm it.”

Covered by the Hague or Hague-Visby Rules?

Straight bills of lading and sea waybills

todd

the straight, non-negotiable bill of lading, not made out to order but naming a consignee. This document can be transferred once only. The Carriage of Goods by Sea Act 1992 treats it as a species of waybill, not a document of title.2 Its status was never determined under the Bills of Lading Act 1855 (which was replaced by the 1992 Act), though the language of s.1 suggested its inclusion.3 These provisions, however, are (or were) concerned with the transfer of contractual rights and duties, and not with delivery of the cargo. However, in 2005 the House of Lords held, in The Rafaela S, that a straight bill of lading was a document of title, to trigger the application of the Hague-Visby Rules.4 Since the relevant wording was unchanged from the previous Convention, it would also be a document of title under the Hague Rules.5 Although it was not necessary for the actual decision, the reasoning may well go further, granting it the status of a document of title at common law, because the consignee must produce it to obtain delivery of the cargo.6 It follows that there are three, not just two, distinct categories of document, and that the straight bill of lading can more effectively be retained by a seller, as security for payment.7

A straight,110 or non-negotiable, bill of lading is one made out to a named consignee which omits the words “negotiable”, or “to order”, or “order or assigns”111 on its face. Alternatively, in place of the non-inclusion of these words, there may appear words which negative transferability, such as “non transferable” or “not negotiable”.112 In practice, many standard form bills of lading are hybrids permitting their issue in either form.113 The effect of these words is to make impossible for transfer such bills of lading by indorsement, if required, and delivery.

The appearance, on the commercial scene, of straight bills of lading is shrouded in some uncertainty. Although it seems that straight bills of lading were not wholly disregarded by the drafters of the Hague Rules in 1924,114 there are also other indications that, although not very common at this time,115 they were certainly not unknown.116 Today, such bills of lading are issued in those trades where a negotiable bill of lading is not required, particularly where it is envisaged that the bill of lading will not need to pass down a chain of buyers. Examples include: (1) the sale of goods to a consignee who does not wish to resell the goods; (2) in-house transfers within large multinational companies; (3) the issue of house bills by NVOCCs117 or freight forwarders; (4) regular sales between companies well known to each other.

Functions

Chuah negotiability 57,58

Rules—-other’s comments

Hence, Bowen L.J.’s reference to the bill of lading operating “as a symbolical delivery of the cargo” n Sanders Bros v Maclean & Co, n.13 above.Although cf. the views of various academic authorities which are of the view that “a straight bill is not a document of title in the common law sense…”: Benjamin, n.29 above, para.18-059. An earlier edition of Benjamin was cited with approval by the Law Commissions of England and Wales and of Scotland, Rights of Suit in Respect of Carriage of Goods by Sea (1991), p.97, n.5 above, para.2.50. See too Carver (2001), n.22 above, para.6-007.See too Chan, p.107, n.1 above.