Transport Documents in Carriage Of Goods by Sea-International Law and Practice

293 Pages·2020·3.087 MB·\293

by  Časlav Pejović (Author)

TRANSPORT DOCUMENTS IN
CARRIAGE OF GOODS BY SEA
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TRANSPORT DOCUMENTS IN
CARRIAGE OF GOODS BY SEA
INTERNATIONAL LAW AND PRACTICE
BY ČASLAV PEJOVIĆ
First published 2020
by Informa Law from Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
52 Vanderbilt Avenue, New York, NY 10017
Informa Law from Routledge is an imprint of the Taylor & Francis Group, an Informa business
© 2020 Časlav Pejović
The right of Časlav Pejović to be identified as author of this work has been asserted by him in accordance
with sections 77 and 78 of the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any
electronic, mechanical, or other means, now known or hereafter invented, including photocopying and
recording, or in any information storage or retrieval system, without permission in writing from the
publishers.
Whilst every effort has been made to ensure that the information contained in this book is correct, neither
the author nor Informa Law can accept any responsibility for any errors or omissions or any consequences
arising therefrom.
Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used
only for identification and explanation without intent to infringe.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
Names: Pejovic, Caslav, author.
Title: Transport documents in carriage of goods by sea : international law and practice / by Caslav Pejovic.
Description: Abingdon, Oxon ; New York, NY : Routledge, 2020. | Series: Maritime and transport law
library | Includes bibliographical references and index.
Identifiers: LCCN 2019052731 (print) | LCCN 2019052732 (ebook) | ISBN 9780367185992 (hardback) |
ISBN 9780429197130 (ebook)
Subjects: LCSH: Bills of lading. | Contracts, Maritime.
Classification: LCC K1178 .P45 2020 (print) | LCC K1178 (ebook) | DDC 346.02/5—dc23
LC record available at https://lccn.loc.gov/2019052731
LC ebook record available at https://lccn.loc.gov/2019052732
ISBN: 978-0-367-18599-2 (hbk)
ISBN: 978-0-429-19713-0 (ebk)
Typeset in Times New Roman
by Apex CoVantage, LLC
CONTENTS
Abbreviations xv
Preface xvii
Table of cases xviii
Table of legislation xxxii
Table of international instruments/treaties xxxiii
CHAPTER 1 INTRODUCTION AND HISTORY 1
CHAPTER 2 DEFINITION AND FUNCTIONS OF BILL
OF LADING 22
CHAPTER 3 ISSUANCE AND CONTENTS OF THE BILL OF
LADING 27
CHAPTER 4 THE BILL OF LADING AS A RECEIPT 43
CHAPTER 5 THE BILL OF LADING AS A CONTRACT 71
CHAPTER 6 BILLS OF LADING UNDER TIME CHARTER 92
CHAPTER 7 BILL OF LADING AS DOCUMENT OF TITLE 112
CHAPTER 8 DELIVERY OF THE GOODS UNDER BILLS OF
LADING 134
CHAPTER 9 THE ROLE OF THE BILL OF LADING IN
INTERNATIONAL TRADE 161
CHAPTER 10 THE SEA WAYBILL 189
CHAPTER 11 SHIP’S DELIVERY ORDER 195
CHAPTER 12 MULTIMODAL TRANSPORT DOCUMENTS 200
CHAPTER 13 ELECTRONIC TRANSPORT DOCUMENTS 216
v
CONTENTS
CHAPTER 14 FUTURE DIRECTIONS IN THE DEVELOPMENT OF
TRANSPORT DOCUMENTS 242
Bibliography 247
Index 250
vi
DETAILED CONTENTS
Abbreviations xv
Preface xvii
Table of cases xviii
Table of legislation xxxii
Table of international instruments/treaties xxxiii
CHAPTER 1 INTRODUCTION AND HISTORY 1
 1.1 Transport documents – in general 1
 1.2 Historic development 1
 1.3 Roman law 2
 1.4 Lex mercatoria 3
 1.4.1 Maintaining strict liability 4
 1.4.2 Creation of the bill of lading 5
 1.5 Developments in the 19th century 8
 1.5.1 Maintaining strict liability 8
 1.5.2 Introducing seaworthiness into the carrier’s liability system 9
 1.5.3 The Harter Act, 1893 11
 1.6 Unification of the law regulating carriage by sea 12
 1.7 The Hague Rules, 1924 13
 1.8 The Hague-Visby Rules, 1968 15
 1.9 The Hamburg Rules, 1978 16
1.10 The Rotterdam Rules, 2008 17
1.11 International conventions compared 19
1.12 Comparative law note 20
1.12.1 Civil law 20
1.12.2 Common law 20
1.12.3 Differences and similarities 21
CHAPTER 2 DEFINITION AND FUNCTIONS OF BILL OF LADING 22
 2.1 Carriage by sea – general introduction 22
 2.2 Charterparties and bills of lading distinguished 22
 2.3 Liner and tramp carriage 23
 2.4 Transport documents 24
vii
DETAILED CONTENTS
2.5 Etymology and terminology 25
 2.6 Definition and functions 25
 2.6.1 Receipt 26
 2.6.2 Evidence of the contract 26
 2.6.3 Document of title 26
CHAPTER 3 ISSUANCE AND CONTENTS OF THE BILL OF LADING 27
 3.1 Obligation of a carrier to issue the bill of lading 27
 3.2 Bill of lading issued on demand of the shipper 27
 3.3 Time of issuance of the bill of lading 28
 3.4 Process of issuance of a bill of lading 29
 3.4.1 Booking note 29
 3.4.2 Shipping note 29
 3.4.3 Shipping order 29
 3.4.4 Dock receipt 30
 3.4.5 Mate’s receipt 30
 3.5 ‘Received for shipment’ bill of lading 31
 3.5.1 ‘Received for shipment’ bill of lading versus ‘shipped on board’
bill of lading 32
 3.5.2 Advantages and disadvantages of ‘received for shipment’ bills
of lading 33
 3.6 Issuance of an ‘on board’ bill of lading 33
 3.7 Switch bill of lading 34
 3.8 Number of bills of lading originals 35
 3.9 Bill of lading copies 36
3.10 Contents of bills of lading 36
 3.10.1 The vessel 37
 3.10.2 Port of loading 38
 3.10.3 Date of issuance of the bill of lading 38
 3.10.4 Antedating of a bill of lading 38
 3.10.5 The carrier 39
 3.10.6 The shipper 40
 3.10.7 The consignee 40
 3.10.8 The goods 41
 3.10.9 Port of destination 41
3.10.10 Freight 41
3.10.11 Signature 42
CHAPTER 4 THE BILL OF LADING AS A RECEIPT 43
 4.1 Bill of lading as evidence in general 43
 4.2 Bill of lading as a receipt 43
 4.3 Evidentiary effect of bills of lading in comparative law 44
 4.4 Evidentiary effect of bills of lading under international conventions 45
 4.4.1 Receipt as to identification marks 46
 4.4.2 Receipt as to quantity 46
 4.4.3 Receipt as to condition 47
viii
DETAILED CONTENTS
4.5 Carrier’s right to insert reservations 48
 4.5.1 Reservations as to identification marks, number and weight 49
 4.5.2 Legal effect of reservations related to identification marks
and quantity 50
 4.5.3 Reasonable grounds for suspicion 51
 4.5.4 Impossibility of checking 52
 4.6 Notations as to the condition 53
 4.6.1 Drafting notations regarding condition 55
 4.6.2 Legal effects of reservations related to condition of the goods 58
 4.7 Validity of pre-printed clauses 59
 4.8 Goods carried in containers 61
 4.9 Controversy regarding the term ‘clean bill of lading’ 63
4.10 Avoidance of notations by clauses in bills of lading 64
4.11 Letters of indemnity 65
4.11.1 Legal regulation of the validity of letters of indemnity 66
4.11.2 Validity of letters of indemnity in legal theory 66
4.11.3 Validity of letters of indemnity – an analysis 67
4.11.4 Nullity of letters of indemnity 68
4.11.5 Letters of indemnity to be used with caution 69
4.11.6 Letter of protest 69
CHAPTER 5 THE BILL OF LADING AS A CONTRACT 71
 5.1 Contract of carriage – general 71
 5.2 Is the bill of lading a contract of carriage? 71
 5.3 The bill of lading as evidence of contract 72
 5.4 Relationship between a bill of lading and a contract of carriage 73
 5.5 Liner bills of lading 73
 5.6 The relation between bills of lading and charterparties 74
 5.6.1 Between shipowner and charterer 75
 5.6.2 Between carrier and shipper 76
 5.6.3 Between carrier and a transferee of the bill of lading 77
 5.7 Incorporation of a charterparty – general 78
 5.7.1 Relevance of the contents of incorporation clauses 79
 5.7.2 General incorporation clauses 79
 5.7.3 Specific incorporation clauses 80
5.7.3.1 Freight 80
5.7.3.2 Demurrage 80
5.7.3.3 Exception clauses 81
 5.7.4 Incorporation of arbitration and jurisdiction clauses 81
5.7.4.1 English law 82
5.7.4.2 American law 83
5.7.4.3 French law 84
5.7.4.4 German law 85
5.7.4.5 Italian law 85
5.7.4.6 Japanese law 86
5.7.4.7 Korean law 86
ix