staunch, and strong”. Sometimes, however, that tendency may be counterproductive, as in the case of the rather inexplicable infatuation with NYPE 1946,
despite the development of later editions that are far superior and far better attuned to
modern conditions. At other times, maritime law (or at least the international
instruments of maritime law) forges bravely ahead despite the indifference of
maritime practice, as in the case of the Multimodal Convention 1980, the YorkAntwerp Rules 2004 or (so far) the Rotterdam Rules 2009. In short, sometimes it is
maritime law that is conservative, and sometimes it is maritime practice, but the
simple point made in this chapter is that they very often end up in different places.
To quote an immortal phrase coined by Justice Dyson Heydon (then of the New
South Wales Court of Appeal, later of the High Court of Australia): “[A]cademic
legal literature is, like Anglo-Saxon literature, largely a literature of lamentation and
complaint.”
94 Because this chapter is no exception, it seems appropriate to try to end
this chapter on a positive note, finding a place where maritime law and maritime
practice, although presently far apart, may perhaps end up in harmony, if only
largely by accident. It seems as though blockchain technology may soon be able
to achieve the long-desired result of creating freely negotiable electronic bills of
lading,
95 something conceived of in international legal instruments for decades
96 but
never (yet) successfully implemented in practice. However, in most countries, a bill
of lading made out “To Order” has not traditionally been regarded as negotiable
because any national or international legal instrument says so
97 : neither the Hague,
Hague-Visby nor the Hamburg Rules say anything about the function of a bill of
lading to give the holder of the original bill the right to possession of the goods. A
bill of lading has always been transferable as “the key to the warehouse”
98 only
because of “the custom of merchants”.
99 Even if the practice of “merchants” changes
to use blockchain, how long will it be before the law recognizes a “custom of
merchants” to that effect?
If the law is to accommodate the advent of blockchain technology quickly,
without waiting for a “custom of merchants” to develop, it must activate one of
those dormant international legal instruments that make provision for the “holder” of
an electronic document to be entitled to demand possession of the goods that it
represents. The Rotterdam Rules 2009 is just such an instrument. Its provisions
about “electronic transport documents” are not ideal for the imminent future of
blockchain technology, because they predate its advent (for example, they speak
94 Union Shipping New Zealand Ltd v. Morgan (2002) 54 N.S.W.L.R. 690, 728, [98].
95 See, e.g., Chetrit et al. (2018), p. 56.
96 See, for example, Comité Maritime International (1990).
97 The U.S. Pomerene Act is a relatively rare exception. It gives the holder of a negotiable bill of
lading a statutory right to demand possession of the goods from the carrier: see 49 U.S.C. § 80105
(a)(2).
98 Sanders Bros v. Maclean & Co. (1883) 11 Q.B.D. 327 at 341, per Bowen L.J.
99 Lickbarrow v. Mason (1795) 3 T.R. 683; 101 E.R. 380.
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M. Davies
despite the development of later editions that are far superior and far better attuned to
modern conditions. At other times, maritime law (or at least the international
instruments of maritime law) forges bravely ahead despite the indifference of
maritime practice, as in the case of the Multimodal Convention 1980, the YorkAntwerp Rules 2004 or (so far) the Rotterdam Rules 2009. In short, sometimes it is
maritime law that is conservative, and sometimes it is maritime practice, but the
simple point made in this chapter is that they very often end up in different places.
To quote an immortal phrase coined by Justice Dyson Heydon (then of the New
South Wales Court of Appeal, later of the High Court of Australia): “[A]cademic
legal literature is, like Anglo-Saxon literature, largely a literature of lamentation and
complaint.”
94 Because this chapter is no exception, it seems appropriate to try to end
this chapter on a positive note, finding a place where maritime law and maritime
practice, although presently far apart, may perhaps end up in harmony, if only
largely by accident. It seems as though blockchain technology may soon be able
to achieve the long-desired result of creating freely negotiable electronic bills of
lading,
95 something conceived of in international legal instruments for decades
96 but
never (yet) successfully implemented in practice. However, in most countries, a bill
of lading made out “To Order” has not traditionally been regarded as negotiable
because any national or international legal instrument says so
97 : neither the Hague,
Hague-Visby nor the Hamburg Rules say anything about the function of a bill of
lading to give the holder of the original bill the right to possession of the goods. A
bill of lading has always been transferable as “the key to the warehouse”
98 only
because of “the custom of merchants”.
99 Even if the practice of “merchants” changes
to use blockchain, how long will it be before the law recognizes a “custom of
merchants” to that effect?
If the law is to accommodate the advent of blockchain technology quickly,
without waiting for a “custom of merchants” to develop, it must activate one of
those dormant international legal instruments that make provision for the “holder” of
an electronic document to be entitled to demand possession of the goods that it
represents. The Rotterdam Rules 2009 is just such an instrument. Its provisions
about “electronic transport documents” are not ideal for the imminent future of
blockchain technology, because they predate its advent (for example, they speak
94 Union Shipping New Zealand Ltd v. Morgan (2002) 54 N.S.W.L.R. 690, 728, [98].
95 See, e.g., Chetrit et al. (2018), p. 56.
96 See, for example, Comité Maritime International (1990).
97 The U.S. Pomerene Act is a relatively rare exception. It gives the holder of a negotiable bill of
lading a statutory right to demand possession of the goods from the carrier: see 49 U.S.C. § 80105
(a)(2).
98 Sanders Bros v. Maclean & Co. (1883) 11 Q.B.D. 327 at 341, per Bowen L.J.
99 Lickbarrow v. Mason (1795) 3 T.R. 683; 101 E.R. 380.
172
M. Davies