shipper or ascertainable from the terms of the agreed contract, or it may be based on
an assessment of the condition of the goods when received and/or shipped by the
carrier.
The international conventions relating to the carriage of goods by sea all address
transport documentation but in different ways. The Hague Rules
1 and Visby Protocol
2 only apply to contracts of carriage “covered by a bill of lading or any similar
document of title”, a form of words which suggests negotiable bills of lading.
3 The
Hamburg Rules
4 are somewhat muddled because in their generality they identify a
contract of carriage by reference to a bill of lading or other document evidencing the
contract of carriage,
5 but the powers of a shipper to demand a transport document are
limited to bills of lading.
6 This position does not appear to be changed by article
18 which indicates more narrowly that “any other document” has the same basic
legal characteristics as a bill of lading.
7 The Rotterdam Rules
8 apply to contracts of
carriage of goods wholly or partly by sea generally without reference to the precise
transport document issued.
9 But thereafter adopts a broad approach to transport
documents
10 (and their electronic equivalents styled electronic transport records
11 )
and adopts a new language. A waybill becomes a non-negotiable transport document
12 ; a straight bill of lading becomes a non-negotiable transport document that
requires surrender,
13 and a negotiable bill of lading becomes a negotiable transport
document.
14
The transport documents are therefore a significant source of factual and evidentiary information relating to the contract of carriage by sea and its performance, and
also to the identity, quantity and condition of the goods shipped.
15 This information
1 International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading
and Protocol of Signature (Brussels, 25 August 1924).
2 Protocol to Amend the International Convention for the Unification of Certain Rules Relating to
Bills of Lading 1924 (Brussels 23 February 1968).
3 Art 1(b). At common law a negotiable bill of lading is recognised as a document of title, with the
consequence that the document represents or is the symbol of the goods recorded in the document:
see Treitel and Reynolds (2017).
4 United Nations Convention on the Carriage of Goods by Sea 1978 (Hamburg 31 March 1978).
5 Arts 1(6) & (7), Part IV.
6 Art 14.1.
7 Art 18 recognises that a carrier may issue a document other than a bill of lading and that such a
document is prima facie evidence of the contract of carriage and a receipt for the goods.
8 United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly
by Sea (Rotterdam 23 September 2009).
9 Art 1.1.
10 Arts 1. 14–16.
11 Arts 1. 18–20, Chpt. 3.
12 Arts 1.16, 45.
13 Art 46.
14 Arts 1.15, 47.
15 See, Baughen (2019).
644
D. R. Thomas
an assessment of the condition of the goods when received and/or shipped by the
carrier.
The international conventions relating to the carriage of goods by sea all address
transport documentation but in different ways. The Hague Rules
1 and Visby Protocol
2 only apply to contracts of carriage “covered by a bill of lading or any similar
document of title”, a form of words which suggests negotiable bills of lading.
3 The
Hamburg Rules
4 are somewhat muddled because in their generality they identify a
contract of carriage by reference to a bill of lading or other document evidencing the
contract of carriage,
5 but the powers of a shipper to demand a transport document are
limited to bills of lading.
6 This position does not appear to be changed by article
18 which indicates more narrowly that “any other document” has the same basic
legal characteristics as a bill of lading.
7 The Rotterdam Rules
8 apply to contracts of
carriage of goods wholly or partly by sea generally without reference to the precise
transport document issued.
9 But thereafter adopts a broad approach to transport
documents
10 (and their electronic equivalents styled electronic transport records
11 )
and adopts a new language. A waybill becomes a non-negotiable transport document
12 ; a straight bill of lading becomes a non-negotiable transport document that
requires surrender,
13 and a negotiable bill of lading becomes a negotiable transport
document.
14
The transport documents are therefore a significant source of factual and evidentiary information relating to the contract of carriage by sea and its performance, and
also to the identity, quantity and condition of the goods shipped.
15 This information
1 International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading
and Protocol of Signature (Brussels, 25 August 1924).
2 Protocol to Amend the International Convention for the Unification of Certain Rules Relating to
Bills of Lading 1924 (Brussels 23 February 1968).
3 Art 1(b). At common law a negotiable bill of lading is recognised as a document of title, with the
consequence that the document represents or is the symbol of the goods recorded in the document:
see Treitel and Reynolds (2017).
4 United Nations Convention on the Carriage of Goods by Sea 1978 (Hamburg 31 March 1978).
5 Arts 1(6) & (7), Part IV.
6 Art 14.1.
7 Art 18 recognises that a carrier may issue a document other than a bill of lading and that such a
document is prima facie evidence of the contract of carriage and a receipt for the goods.
8 United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly
by Sea (Rotterdam 23 September 2009).
9 Art 1.1.
10 Arts 1. 14–16.
11 Arts 1. 18–20, Chpt. 3.
12 Arts 1.16, 45.
13 Art 46.
14 Arts 1.15, 47.
15 See, Baughen (2019).
644
D. R. Thomas