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By Lorenzo CROCE, member of the Geneva Bar, LL.M.
The rules on carriage by sea, originating from customary practices, are today firmly grounded in legislation. One of these, a basic rule, specifies that the carrier should only deliver the goods to the consignee after production of the bill of lading.
However, as often, reality differs greatly from theory.
Indeed, with increased shipping speed, goods often arrive at destination before the bill of lading. The carrier is then faced with a dilemma: whether to await the arrival of the document or deliver the goods in violation of the contract.
Customary practice has imagined many solutions to this problem.
Our intention, in this paper, is to draw up a brief inventory of these. After recalling the presentation rule (I), we will examine, from a critical point of view, the introduction of the letter of indemnity (II), the seaway bill and the electronic bill of lading (III).
I) BILL OF LADING:CHARACTERISTICS AND PRESENTATION RULE
The bill of lading is a document specific to the trade of goods by sea. It has evolved over a long period of time and has become today the cornerstone of sea carriage. Indeed, the characteristics of the bill of lading have constantly evolved since it first appeared in the 15thand 16th centuries. Initially this document constituted a receipt for goods by the captain making it no longer necessary for the merchants to travel with their cargo. Then, in the 18th century, the bill of lading became a document of title. It was finally in the 19thcentury, with the arrival of the first regular maritime lines, that it was fully recognized as proof of the carriage contract.
Today the bill of lading can be defined as “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.” (article 1 § 7 Hamburg Rules).
In the light of this definition the bill of lading has the following three characteristics:
Firstly, it is a receipt for the goods shipped. The issue of a bill of lading provides evidence that the carrier has received the goods and that the cargo complies with what it describes.
Secondly, although generally only signed by the carrier, the bill of lading is evidence of the contract of carriage. It establishes the conditions of the contract and the parties’ respective obligations.
Lastly, the bill of lading is a document of title. This is its most essential characteristic and also the most complex.
Upheld in 1787 by English case law (Lickbarrow v. Mason case), this function implies that the bill of lading and the goods are one and the same. As summarized by Lord Justice Bowen, the bill of lading is “[…] a key which in the hands of a rightful owner is intended to unlock the door of the warehouse, floating or fixed, in which the goods may chance to be.”
In other words, the bill of lading is considered to symbolise the goods and its transfer leads to the transfer of the rights to the cargo, if such is the parties’ intention. Thus, it constitutes a title of ownership of the goods and its possession is the same as the possession of the goods.
In addition, since it can be endorsed, the bill of lading can be traded in a commercial or bank transaction, for instance when a letter of credit is issued.
The corollary of this function is that the lawful holder of the bill of lading has the right to require the delivery of the goods from the carrier when these arrive at the port of destination without the need to provide evidence of ownership of the cargo. From the carrier point of view, he should only deliver the goods to the holder of the bill of lading who produces an original of this (presentation rule). This is an obligation for the carrier. The latter should not be concerned with the ownership of the goods. If he delivers the goods without requiring the production of the bill of lading, he is in breach of the carriage contract.
The presentation rule is confirmed today in the majority of international legislations. Thus, article 1 § 7 of the Hamburg Rules, which defines the bill of lading, specifies that the carrier undertakes to deliver the goods against surrender of the bill of lading. Likewise, article 47 of the Rotterdam Rules indicates that, in the case of issue of a negotiable transport document (the Convention is implicitly referring here to the bill of lading), the holder of it has the right to claim the delivery of the goods by the carrier at the place of destination against surrender of the bill of lading and on condition that he properly identifies himself. The carrier refuses to deliver the goods if these requirements are not fulfilled.
In countries of Common Law, the presentation rule was already established in the 19th century, based, in particular, on the theory of bailment and constructive possession. Thus, in an English ruling in 1889 Sir Butt J. stated “[…] A shipowner is not entitled to deliver goods to the consignee without the production of the bill of lading.I hold that the shipowner must take the consequences of having delivered these goods to the consignee without the production of either of the two parts of which the bill of lading consisted.”
With the adoption of the Carriage of Goods by Sea Act of 1992, the production principle is now codified in English law. In fact, according to article 2 “[…] a person who becomes the lawful holder of a bill of lading […] shall (by virtue of becoming the holder of the bill or, as the case may be, the person to whom delivery is to be made) have transferred to and vested in him all rights of suit under the contract of carriage as if he had been a party to that contract”. Legal theory, based on this provision, considers that insofar as the consignee can take action against the carrier to exercise his rights based on the contract of carriage, he has, as a prerequisite to exercising these, the right to require the delivery of the goods. It should be noted that Singapore opted for this same approach in the Bills of Lading Act of 1994.
As regards countries of Civil Law, we note that the presentation rule is widely adopted in domestic legislation. Thus, article 116 § 2 of the Loi fédérale sur la navigation maritime sous pavillon suisse and articles 49 and 50 of the Decret français (no. 66-1078) du 31 Décembre 1966 sur les contrats d’affrètement et de transport maritimes specify that the production of an original bill of lading is necessary to obtain delivery.
An issue widely debated by legal writers was that of whether a straight bill of lading (issued in the name of a designated person) would be subject to the presentation rule or if, on the contrary, it could be considered, due to its non-transferable and non-negotiable nature, to be a document that does not need to be given to the carrier at the time of delivery. Case law, not without some hesitation, ruled in favour of the first hypothesis. In a landmark decision, the English House of Lords ruled that a straight bill of lading was indeed a true bill of lading subject to the presentation rule. Singapore had also adopted this approach in 2002 already, ruling that “once [the shipowner] issues a bill of lading…, whether it is an order bill or a straight bill, he must not deliver the cargo except against its production.The contrary view had much less support and most of it was recent and cursory” .It should be noted that this position is also adopted by other jurisdictions, in particular, by the courts of Hong-Kong, Australia and France. Only the United States appear to make an exception, but only in the event that the bill of lading contains no express surrender clause, which is rare in practice.
As regards exceptions to the presentation rule, these are mainly of three types: firstly the parties have the possibility of contractually agreeing that the delivery will be made without production of the bill of lading. The parties can also decide that if the bill of lading is not available at the time of the delivery, the consignee can provide other documents given by the shipper or the latter will pay an indemnity entitling the buyer to obtain the delivery of the goods (GAFTA 100) .
It also appears legitimate that a consignee of goods who has lost the bill of lading should be able to take legal proceedings to demand the delivery of the cargo.
Finally, the law of the place of discharge or the customary practices of the port sometimes allows delivery without the bill of lading. The latter is, however, subject to restrictive conditions. Thus, “it must be reasonable, certain, consistent with the contract, universally acquiesced and not contrary to law.”
As we have seen, the principle whereby the bill of lading must be produced upon delivery of the goods is strongly stated both in national and international legal texts and case law. A carrier who accepts to deliver goods without a bill of lading violates the carriage contract and runs the risk of having to pay damages to the lawful holder of the title (see, for instance, articles 5 § 1 Hamburg Rules and 116 § 4 of the Swiss LNM).
In Anglo-Saxon law, the carrier will be liable not only in contract but also in tort (tort of conversion) . The carrier will bear an even heavier liability since P&I Clubs generally exclude this type of risk from their policy.
However, in principle the carrier can be exempted from liability for delivery without bill of lading through the insertion of a specific clause in the carriage contract. On the other hand, a general clause excluding liability for “misdelivery” is not sufficient in Common Law.
It is also worth noting that if the carrier releases the merchandise on the basis of a forged bill of lading, the latter is considered to be null and void and the delivery is also deemed to have been made without bill of lading. In Common Law countries, the carrier remains liable in all circumstances for delivery against the surrender of a false bill of lading. According to English judges, the carrier is, in fact, expected to recognise his own bills of lading and ensure that these cannot easily be falsified. French courts, however, appear to be more flexible in this respect stating that if the false bill of lading is practically identical to the original and the difference is very small, the carrier can be released from all liability.
In practice it happens that the goods arrive at destination before the bill of lading. This frequent situation can be explained by the fact that generally, despite progress in the postal services, the bill of lading does not travel as quickly as the goods, especially in the case of travel over short distances. Also, the banks often need time to issue the letter of credit on which the bill of lading is based. 
The carrier, nonetheless, often finds himself forced to deliver the goods due to commercial pressure from the consignee, the perishable nature of the goods, parking costs or quayside areas full at the port. In the latter case, if the goods remain on board, the ship is blocked for a more or less long period.
Thus the carrier finds himself in a difficult situation. If he delivers, he runs the risk of the lawful holder of the bill of lading taking action against him. In practice several instruments have been developed to solve this problem, in particular that of the letter of indemnity.
II) THE LETTER OF INDEMNITY:A SOLUTION FOR DELIVERY WITHOUT BILL OF LADING
We have seen that it frequently happens in practice that the consignee is not in possession of the bill of lading when the goods are delivered. To avoid the cargo being blocked, the carrier often accepts – but is not bound to do so – to hand over the goods to the consignee in return for the surrender of a letter of indemnity.
Nevertheless, by issuing this letter, the carrier violates the contract of carriage. However, this behaviour, in breach of the law, is unanimously accepted in practice. Furthermore, the validity of the letter of indemnity is recognized both by the courts and legal writers. Even the P&I Clubs provide their members with models of letters of indemnity to be used in the case of delivery without bill of lading.
The letter of indemnity constitutes an independent undertaking of the carriage contract. The signatory undertakes, generally irrevocably and upon first request, to indemnify the carrier for all consequences of the delivery without a bill of lading. The scope of this promise is very wide since it covers not only the refund of the value of the goods but also any damage suffered by the real holder of the bill of lading. As a general rule, the amount and the duration of a letter of indemnity are unlimited.
In addition to this undertaking, the recipient of the goods is also bound to provide the carrier with the bill of lading as soon as possible. In fact, despite the letter of indemnity, the carrier’s obligations remain unchanged.
As a general rule, the letter of indemnity will be countersigned by a bank that guarantees the signatory. Whether the bank is jointly and severally liable with the signatory or subsidiarily liable will depend on the circumstances and the content of the contract.
It results from the foregoing that the signatory makes an extremely heavy commitment, especially if he is not the recipient of the goods but only his agent (for instance the forwarding agent). In fact, in such a case he often is no longer in possession of the goods and, despite his right to take action against the consignee, he has no guarantee of success if the latter is insolvent. Great care must therefore be taken when drafting a letter of indemnity.
The letter of indemnity is also a dangerous instrument since it is dependent on the signatory’s financial soundness. It is also costly for the latter insofar as it requires substantial funds to be frozen for an indefinite period.
III) OTHER SUBSTITUTES FOR A BILL OF LADING
A) The seaway bill
We have seen that the letter of indemnity provides a solution, to some extent, to the problem of delivery without a bill of lading. This instrument, developed by customary use, can nonetheless be criticized insofar as it is uncertain and contrary to the law. When it is not essential for the persons entitled to the cargo that the document should be a title to the goods, the parties can choose another type of carriage document: the sea waybill.
Recently created (1977), the seaway bill constitutes an interesting alternative to the bill of lading. Whilst resembling it in form, it differs by its functions. Admittedly, it has two characteristics identical to that of a bill of lading – it is a receipt for goods and evidence of the carriage contract – but it is not a title to the goods and is not a negotiable document.
Just as for the bill of lading, it is for the carrier to issue the document that, as a general rule, contains the same information. The consignee’s name and the shipper’s name must, however, be expressly indicated. When the cargo arrives, the consignee only needs to provide proof of his identity to obtain delivery of the goods – no need for him to produce the document. Thus, by its non-negotiable nature, the seaway bill provides an efficient solution to the problem of deliveries without bills of lading. The recipient of the goods is no longer burdened with the formalities inherent to the use of the bill of lading.
It should be noted that today uniform rules adopted by the Comité Maritime International (CMI) apply to the seaway bill.
As a general rule, the seaway bill will be used more particularly in situations where the issue of a bill of lading is not necessary, for instance in transactions where there is no sale associated with a carriage contract (removal of personal belongings, shipment between two companies part of the same group, etc.) or when the vendor and buyer know each other sufficiently well to waive the issue of a negotiable instrument.
On the other hand, although the seaway bill may be used in the issuance of a letter of credit, it does not offer the possibility of obtaining the bank as pledgee of the goods.
Thus, whilst the seaway bill is an alternative to the bill of lading, it does not completely replace it. Admittedly, the seaway bill reduces the burden and complexity of the bill of lading but it is not suitable when the goods are to be resold during carriage. The seaway bill must therefore co-exist with the bill of lading and not replace it.
Finally, it is worth noting that the seaway bill also exists in electronic form thus eliminating any lateness due to the postal service. This e-document is called a Data Freight Receipt (DFR) and is widely used today.
B) Electronic bill of lading
Over the last decades, players in the sea carriage sector have sought to reproduce electronically the functions of traditional paper bills of lading. The aims of this initiative are clearly to solve the problem of goods delivered without title and to limit the costs linked to the use of paper and the risks of frauds resulting from bills of lading in a hard copy form.
Whilst the fact of making a bill of lading paperless does not, in principle, pose a legal problem in respect to the latter’s first two functions – receipt of goods and evidence of conclusion of a carriage contract – the same does not apply to its function as document of title. Indeed, can an electronic bill of lading be considered to be negotiable? As State legislation stands at present, we are forced to say no. In fact, many legal systems link the rights of ownership of goods to the possession of a paper document. Consequently, only a modification to legislation would allow an electronic bill of lading to convey title of ownership.
Admittedly, the 1996 Model Law on Electronic Commerce of the United Nations Commission on International Trade (UNCITRAL), in articles 16 and 17, gives functional equivalence to carriage documents whether these are in a paper or paperless form and offers States the possibility of harmonizing their legislation on the transfer of e-documents. However, these provisions have not, to date, met with the success that was hoped for by national law makers. Therefore, today there is no uniform, global legal framework for recognizing the electronic bill of lading as a negotiable instrument.
It follows from the foregoing that only contractual mechanisms without “legal guarantee” can be contemplated. Initiatives in this regard have been taken with the aim of developing systems allowing secure transfer of rights to goods by electronic messages, so-called EDI (Electronic Data Interchange). The first attempts, in particular the SeaDocs Registry and the Cargo Key Receipt were failures.
In 1990 the CMI adopted rules on electronic bills of lading. It is, however, a purely contractual system, the rules lacking force of law (rule 1).
The main characteristic of these rules resides in the fact that the carrier sends the shipper an e-document containing information similar to that of a paper bill of lading (rule 4 a)). The endorsement of this paperless bill of lading is by a secret code or “confidential key”, which is specific to each holder and non-transferable (rule 8 a). Only the key holder can demand the delivery of the goods, designate the consignee, transfer the rights to the goods and give instructions to the carrier (rule 7 a)). The holder is thus in exactly the same position as if he were in possession of an original bill of lading.
However, the CMI rules, although appealing, have not been widely supported by professionals in the branch. They have been criticized for both the lack of a specific provision on the transmission of the rights of the carriage contract to the consignee and the lack of any duly specified security system. Moreover, doubts have been expressed concerning rule 7 d), which specifies that an e-transfer has “the same effects as the transfer of such rights under a paper bill of lading”. As pointed out above, it indeed appears doubtful that the parties would be able to contract out of the binding legal rules of certain States prohibiting the endorsement of titles by exchange of electronic data.
In 1999, a new pilot program for an electronic bill of lading was launched, the BOLERO (Bill of Lading for Europe) system. The latter, based on CMI Rules, allows its users (carriage companies, banks, forwarding agents, exporters, etc.) to communicate between each other via a central register using standard EDI messages. In other words, it is a secure platform for the exchange of e-documents. The BOLERO electronic bills of lading resemble the traditional bills in form and have exactly the same functions (receipt of goods, evidence of carriage contract and document of title). The cornerstone of the system is the register of titles: the latter establishes the detailed content of the bills and allows each holder, thanks to a secure system, to transfer the rights to the goods to another user.
Although BOLERO offers numerous advantages by speeding up transactions and reproducing the traditional functions of the paper bill of lading, it is a closed system that only subscribers can use. Moreover, it has only been adopted by a limited number of people and is only operational if all the parties to the carriage contract are members of the association. Finally, its sophisticated technology prevents it from being easily used in third world countries.
The bill of lading is the key element in the sea carriage contract. However, with the increased pace of trade, it is considered today to be an unwieldy instrument, unsuitable for certain situations. In particular, it appears difficult to respect the presentation rule, which stipulates that the carrier must only deliver the cargo when the bill of lading is handed over. Admittedly, in practice various solutions have been found to circumvent this problem, such as the issue of a letter of indemnity or a seaway bill. These mechanisms have, however, shown their limits and cannot fully replace the bill of lading.
No doubt the solution resides in the implementation of a true electronic bill of lading. However, this presents many problems. In particular, at the present time there is no harmonization or agreement on a secure EDI system and only limited contractual mechanisms are available (e.g. BOLERO). Moreover, the negotiability of the bill of lading is a non-negligible obstacle to electronic substitutes. Indeed, many countries do not recognize the electronic bill of lading as a negotiable document of title.
Whilst some states, such as South Korea recently, have incorporated the electronic bill of lading into their domestic legislation, many states, such as Singapore and the United Kingdom, have not yet taken this step. Consequently, we still have a long way to go.
The entry into force of the Rotterdam Rules that contain specific provisions concerning the electronic bill of lading (chapter 3) will perhaps give new impetus to this.
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 BONASSIES Pierre, SCAPEL Christian, Droit maritime, 2ème édition, L.G.D.J 2010, p. 669; DAVIES Martin, DICKEY Anthony, Shipping Law, Third edition, Lawbook CO. 2004, p. 165-166.
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 BONASSIES, SCAPEL, ibid.
 Sanders Brothers v Maclean & Co  11 QBD 327.
 DAVIES, DICKEY, op. cit., p. 262; DEBATTISTA Charles, Bills of lading in Export Trade, Tottel 2009, p. 26-27.
 DEBATTISTA, op. cit., p. 27.
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 The Stettin (1889) 14 PD 142 in GIRVIN op. cit., p. 144.
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 CHAN Felix W. H., NG Jimmy J. M., WONG Bobby K. Y., Shipping and logistics law (Principles and Practice in Hong Kong), Hong Kong University Press 2002, p. 229-237.
 JI Mac William Co Inc v Mediterranean Shipping Co SA (The Rafaela S)  UKHL 11.
 Voss v APL Co Pte Ltd  2 Lloyd’s Rep 707, at  in GIRVIN op. cit., p. 151.
 Carewins Development (China) Ltd v Bright Fortune Shipping Ltd  3 HKLRD 409.
 Beluga Shipping GmbH & Co v Headway Shipping Ltd  FCA 1791.
 Arrêt de la Cour de Cassation n° 891 du 19 juin 2007.
 DAVIES, DICKEY op. cit., p. 168.
 WILSON John F, Carriage of goods by sea, seventh edition, Pearson 2010, p. 158.
 GIRVIN, op. cit., p. 143.
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 SA Sucre Export v Northern River Shipping Ltd (The Sormovskiy 3068), , 2 Lloyd’s Rep 266.
 Sze Hai Tong Bank Ltd v Rambler Cycle Co Ltd  AC 576 (PC); AIKENS Richard, LORD Richard, BOOLS Michael, Bills of lading, Informa 2006, London, p. 99.
 CHAN, NG, WONG, op. cit., p. 231; GIRVIN, op. cit., p. 157-158; HILL Christopher, Maritime Law, sixth edition, LLP 2003, p. 254.
 Nissho Iwai (Australia) Ltd v Malaysian International Shipping Corp Berhad  167 CLR 219; HILL, op. cit., p. 255; AIKENS, LORD, BOOLS, op. cit., p. 93.
 Motis Exports Ltd v Dampskibsselskabet AF 1912  1 Lloyd’s Rep 211 (CA); Sze Hai Tong Bank Ltd v Rambler Cycle Co Ltd  AC 576 (PC); DAVIES, DICKEY, op. cit., p. 262-263; GIRVIN, op. cit., p. 149.
 Motis Exports Ltd v Dampskibsselskabet AF 1912  1 Lloyd’s Rep 211 (CA); HILL, op. cit., p. 255.
 Motis Exports Ltd v Dampskibsselskabet AF 1912  1 Lloyd’s Rep 837; Trafigura Beheer BV v Mediterranean Shipping Co SA (The Amsterdam)  2 Lloyd’s Rep 622; GIRVIN, op. cit., p. 145; FAYE, op. cit., p. 23; WILSON, op. cit., p 155.
 Arrêt du 22 novembre 1996 de la Cour d’Appel de Paris, Société Autorex France c/ Société Galion, BTL 1997, p. 199; FAYE, op. cit., p. 22.
 WILSON, op. cit., p. 157.
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 Kuwait Petrolum Corporation v I&D Oil Carriers Ltd (The Houda)  2 Lloyd’s Rep. 541 (CA).
 HILL, op. cit., p. 254.
 Pacific Carriers Ltd v BNP Paribas  HCA 35; Kuwait Petrolum Corporation v I&D Oil Carriers Ltd (The Houda)  2 Lloyd’s Rep. 541 (CA); Arrêt de la Cours de Cassation du 22 Mai 2007, JCP G n°30, 25 Juillet 2007 (France).
 BONASSIES, SCAPEL, op. cit., p. 710-711; FAYE, op. cit., p. 65-67.
 FAYE, op. cit., p. 67.
 The Stone Gemini  2 Lloyd’s Rep 255. Arrêt de la Cour de Cassation du 17 juin 1997, pourvoi N° 95-13895, Legifrance.
 BONASSIES, SCAPEL, op. cit., p. 710-711.
 BONASSIES, SCAPEL, op. cit., p. 710.
 HILL, op. cit., p. 254.
 The Stone Gemini  2 Lloyd’s Rep 255; SA Sucre Export v Northern River Shipping Ltd (The Sormovskiy 3068)  2 Lloyd’s Rep 266.
 GIRVIN, op. cit., p. 156.
 FAYE, op. cit., p. 56.
 WILSON, op. cit., p. 158.
 BONASSIES, SCAPEL, op. cit., p. 673.
 BONASSIES, SCAPEL, ibid; WILSON, op. cit., p. 159.
 DEBATTISTA, op. cit., p. 42-44; WILSON, op. cit., p. 159-160.
 WILSON, op. cit., p. 160.
 DEBATTISTA, op. cit., p. 41; WILSON, op. cit., p. 159.
 BONASSIES, SCAPEL, op. cit., p. 673.
 MAJSTOROVIC, op. cit., p. 82; WILSON, op. cit., p. 160.
 BONASSIES, SCAPEL, op. cit., p. 673; FAYE, op. cit., p. 78-79.
 CONFERENCE DES NATIONS UNIES SUR LE DEVELOPPEMENT, Rapport du 31 juillet 2001 sur le commerce électronique et les services de transports internationaux, http://www.unctad.org/fr/docs/c3em12d2.fr.pdf, p. 15; GIRVIN, op. cit., p. 197.
 WILSON, op. cit., p. 166.
 AIKENS, LORD, BOOLS, op. cit., p. 35-36; CONFERENCE DES NATIONS UNIES SUR LE DEVELOPPEMENT, op. cit., p. 19; GIRVIN, op. cit., p. 200-201.
 GIRVIN, op. cit., p. 198.
 CONFERENCE DES NATIONS UNIES SUR LE DEVELOPPEMENT, op. cit., p. 20.
 GIRVIN, op. cit., p. 201-202.
 GIRVIN, op. cit., p. 203-205.
 CONFERENCE DES NATIONS UNIES SUR LE DEVELOPPEMENT, op. cit., p. 21; GIRVIN, op. cit., p. 205.
 CHAN, NG, WONG, op. cit., p. 237-243 ; COMMISSION DES NATIONS UNIES POUR LE DROIT COMMERCIAL INTERNATIONAL, Annuaire, Volume XXXII : 2001, Publication des Nations Unies 2001, p. 311-313.
 WILSON, op. cit., p. 170-171.
 These two states have however included this possibility in their domestic law (Section 1(5) Bills of Lading Act and Carriage of Goods by Sea Act).