Transport Documents in Carriage Of Goods by Sea

International Law and Practice

Časlav Pejović

• Éditeur: Informa Law from Routledge
• Année: 2020
• ISBN:
  9780429589225
• Édition: 1
• Sujet: Droit
• Sous-sujet: Théorie et pratique du droit

Bringing a fresh, comparative approach to transport documents used in the carriage of goods by sea, this book covers bills of lading, sea waybills, ship's delivery orders, multimodal transport documents, and electronic transport documents. The book covers historic developments, current conventions, and thoughts for the future on these transport documents; and delves deeply into the legal issues concerning them. It represents a comprehensive compilation of case and statute law from around the world on this subject. In addition to English law, the book covers American, French, German, and Italian laws, as well as the laws of several East Asian jurisdictions (China, Japan, South Korea). Primarily, the book will be of use to maritime law scholars and students, and lawyers who deal with shipping. It may also be of interest to international traders, banks, and ship masters and officers.

CHAPTER 1

Introduction and history

1.1 Transport documents – in general

The carriage of goods by sea is carried out on the basis of a contract of carriage between a carrier and a consignor (shipper). A contract of carriage is not necessarily concluded in writing, but normally requires evidence. In practice, a contract of carriage is usually evidenced by a transport document issued after the goods have been delivered by the consignor to the carrier.

Transport documents serve various purposes. They contain particulars about the parties to the contract of carriage, the goods and the terms and conditions of carriage. However, the role of transport documents can be more complex than simply acting as evidence. Some transport documents are able to function as documents of title, which means that the documents themselves are able to represent the goods and entitle their holders to demand delivery of the goods from the carrier. This function of transport documents plays an important role in overseas sales, enabling a seller to sell the goods while they are in transit. Through letters of credit, banks also accept paying for goods from a seller as beneficiary in exchange for a document of title which serves as a security for debt.

For centuries the only transport document used in the carriage of goods by sea was the bill of lading. In modern shipping, in addition to bills of lading, several other transport documents are used in the carriage of goods by sea: sea waybills, ship’s delivery orders, multimodal transport documents and electronic bills of lading. This book will try to give adequate space and attention to all types of transport documents used in the modern carriage of goods by sea.

1.2 Historic development

The bill of lading has a long history, and throughout different periods the term has had different meanings. Through the centuries of its history, the bill of lading has undergone great changes in its form, content, characteristics and functions. In its original form, the bill of lading was a simple certificate proving that cargo was received for carriage, but later it became a document of title and also evidence of the contract of carriage.

This short overview of the historic development of the bill of lading will be limited to events that are relevant for a better understanding of this document and its functions in contemporary practice. In order to better understand bills of lading, it is important to first examine the documents which preceded bills of lading and eventually gave way to them. It is also important to follow in parallel the process of building the system of liability of the carrier, since bills of lading cannot be separated from the issues related to the carrier’s liability.¹

1 This part uses portions of my article “The Basis of Carrier’s Liability: from Roman Law to the Rotterdam Rules” published in (2017) Asian Business Lawyer Vol.20. I am grateful to the editors of this journal for granting the permission.

1.3 Roman law

The first traces of the modern system of carrier’s liability and transport documents can be found in Roman law. In Roman law, the contract of carriage had not achieved the status of a distinct contractual form. In those times, lawyers dealt with it in the framework of the contractual forms known to them, such as deposit and hire of services.

Under Digest 4.9,² shipowners (nautae),³ innkeepers (caupones) and stable keepers (stabularii) were liable to compensate damage to the plaintiff where a delict (or tort) of theft or wrongful loss had been committed by any of their employees in the ship, inn or stable.⁴ The common feature that linked these three parties was the fact that goods were entrusted into their custody (receptum nautarum); this fact implied that they had knowledge of anything that happened to the goods. They did not enjoy a good reputation, as there was a risk of abuse of their position of custodians and a risk of collusion with thieves.⁵ The shipowner’s liability was based on custodia, meaning the duty of due diligence to guard, care and keep safe the goods while they were entrusted to him and to deliver the goods in the same condition as he received them for carriage. The rationale for this liability system was the need for protection of the parties who entrusted their goods into the custody of shipowners, innkeepers or stable keepers.

2 The Digest (also known as the Pandects) refers to digest of juristic writings on Roman law compiled by order of the emperor Justinian I in the 6th century CE (530–533).

3 Digest 4.9.2 provides that the term ‘nautae’ refers to the person who manages the ship as ‘exercitor’ (ship-owner or charterer).

4 Actio Adversus Nautas, Caupones, Stabularios: Digest 4.9.1. Ulpianus, On the Edict, Book XIV. The praetor says: “When masters of ship, innkeepers, and the masters of stables have received property for safe keeping, I will grant an action against them if they do not restore it”.

5 Reinhard Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (Oxford, Oxford University Press, 1996) 516.

From a theoretical perspective, the liability of shipowners, innkeepers and stable keepers was based on quasi-delict (quasi ex delicto) that covered several types of harm, grouped together by no clearly identifiable principle classified as analogous to delictual obligations. In nature, this was vicarious liability apart from fault or, more precisely, strict liability based on presumed negligence.⁶ The shipowners, innkeepers and stable keepers were made liable for their employees’ wrongdoing in the course of their employment, and their liability was strict.⁷ Liability extended to cover negligent omissions (culpa in non-faciendo). The liability was strict in the sense that they had a duty to restore the goods received in custody and they were held liable for loss or damage regardless of fault. They would be liable even if they acted with due diligence and could be relieved of responsibility only by proving that the loss was attributable to a fortuitous event outside of human control (damnum fatale).⁸

6 Thomas A.J. McGinn (ed.), Obligations in Roman Law: Past, Present, and Future (Ann Arbor, Michigan, University of Michigan Press, 2012) 314.

7 Zimmermann, 516.

8 Zimmermann, 515.

Digest 4.9.1.3 provided that the master could make an acknowledgment called xeirembolon (χειρέμβολον), which referred to taking cargo in custody by the master.⁹ The fact that this important term was in Greek indicates that this provision possibly had its origin in the Lex Rhodia¹⁰ It can be presumed that this acknowledgment was in the form of a document. Digest 4.9.1.3 stated that even if the master did not make this acknowledgment, the shipowner would nevertheless be liable for what was received. This can be construed as liability for the property received in custody which was evidenced by xeirembolon, or, in the absence of this acknowledgment, by other evidence.¹¹ Xeirembolon was not a guarantee of the safe arrival of the goods, as in such case it could be construed as contract of carriage, instead of being just an acknowledgment evidencing that certain goods were received for carriage. However, xeirembolon represented the basis of liability for safe keeping. The owner of the goods had to prove the damage by relying on xeirembolon as evidence, and then the burden shifted to the shipowner to prove what happened and that he was not liable. There is merit to the assertion that xeirembolon was the seed from which bills of lading developed at a later stage, while the liability of nautae under Roman law represented the basis for the modern concept of presumed liability of the carrier.

9 Digest 4.9.1.3, Ulp. Ad edictum: Et sunt quidam in navibus, qui custodiae gratia navibus praeponuntur, ut naufulakes et diaetarii. si quis igitur ex his receperit, puto in exercitorem dandam actionem, quia is, qui eos huiusmodi officio praeponit, committi eis permittit, quamquam ipse navicularius vel magister id faciat, quod xeirembolon appellant. sed et si hoc non exercet, tamen de recepto navicularius tenebitur. (Translation: “There are also persons who occupy positions on board ships for the purpose of caring for merchandise such as nanfulakes, that is to say, marine guards and stewards. Therefore, if any of these should receive anything, I think that an action should be granted against the owner of the ship, because he who appointed persons of this kind to office permits property to be placed in their charge; even though the captain, or master does that which is called xeirembolon that is to say, ‘taking the property in his hands’. But even if he does not do this, the ship-owner will nevertheless be liable for what was received”.)

10 Lex Rhodia originated at the island of Rhodes between the 9th and 5th centuries B.C. and is widely considered to be the oldest maritime law code. Many authors use the name Lex Rhodia de iactu. Actually, ‘de iactu’ addition is about throwing (iactu is ablative of iactus = thrown, cast) and it probably refers to jettison of the goods in general average. It can be assumed that the part on general average was one piece of Lex Rhodia, and the only one that was preserved in the Justinian digests. The text of the provision on general average states just ‘lege Rhodia cavetur’ (Digest 14.2.1).

11 According to Pardessus, xeirembolon represented a verbal consent (Jean-Marie Pardessus, Collection de lois, maritimes antérieures au XVIIIe siècle (Paris, L’Imprimerie Royal) Vol. I. 87, No. 2.

1.4 Lex mercatoria

After the fall of the Roman Empire, Europe was broken into several states, and the laws fell into almost absolute oblivion as the continent was overrun by barbarians. The invaders were not seafarers, and the conquered people were permitted to keep the Roman law to which they had become accustomed. The development of maritime commerce in the Middle Ages gave rise to a need for maritime legislation more developed than what existed in the Roman Empire. Roman law was a highly developed legal system which had great influence on modern law, but it was designed for a different level of societal development.

Maritime law gradually developed as a separate legal discipline during the Middle Ages. Roman law and customary law, with elements of canon law, represented the basis of the maritime law that developed in the Middle Ages, first in Italian cities, and then in the rest of Europe. Those laws were mainly developed in the sea ports, and the formulation of their rules was influenced by the nature o...