Bill of Lading

INTRODUCTION

The industrial revolution in the mid-18th century led to an increasing expansion of maritime transportation and shipping bill of lading that emerged in 14th century in legal realm has evolved in, and its dimensions, specifications and its governing legal laws have been defined or identified. On the other hand, increasing expansion of maritime transportation and the significance of this document in international transactions and trade and the expansion of laws governing it in international aspect made a convention passed as "International convention on the integration of some laws on shipping bill of lading" known as " Hague Convention" or Brussels. After approval of this convention, its deficiencies soon became clear and attempts to remove these deficiencies lead to passing Visby Protocol in 1965 and 1968, the revisions approved within Visby protocol were directly included in Hague convention and passed by in some countries as "Visby-Hague Rules." Again, in 1979, another amending protocol related to Hague convention was passed as "SDR" protocol; yet, none was generally adopted by the countries. On the other hand, "United Nations Conference on Trade" (UNCTAD) that had the responsibility of developing regulations on maritime transportation decided to prepare a convention independent of Hague Convention, its protocols and Visby-Hague regulations; to this end, in 1978, Hamburg convention was passed as "International maritime transportation convention" and put in to effect in 1992 with signature of 20 countries. Nonetheless, in so far as most ship-owning countries did not join Hamburg convention and also due to the inefficiency of this convention, in one hand, and significant growth of linear transportation and popularity of "door-to-door" contracts and spread of mechanized transportation of good by the container. In one hand; and due to the necessity of equal support of developing countries (that are mainly owners of good) against developed countries (who are mainly vessel owners) and nonconformity of old laws in Hague convention, its attached protocols and Visby-Hague laws with the modern maritime transportation needs. United Nations Commission on International Trade Law (UNCITRAL) considered the development of an integrative convention in its agenda and Rotterdam convention was finally approved by general.

jpl.ccsenet.org Journal of Politics and Law Vol. 9, No. 8; 2016 45 assemblies of United Nations after adjustments and modification and in 2009, after being signed by 20 countries in membership of united nations entered into force in the realm of international law as a binding convention. Iran considered regulations on maritime transportation in maritime code in 1964 (in articles 52 to 68) and on February 3, 1965, joined Hague convention as "Law on Accession of the Imperial Iranian Government to Seven International Maritime Law Contracts." Nevertheless, despite the fact that at that time, two protocols were attached to Hague convention and Visby-Hague regulations (that is amended version of Hague convention) in 1968 and Hamburg convention was passed in 1378 and Rotterdam convention in 2008, during this time, no action has been able to update the maritime transportation laws and regulation and despite expectations. In new amendment in "Amended law of maritime code" approved in 2012, no article related to maritime transportation has been revised. In this paper, it is tried to review the concept of shipping bill of lading and its proofing aspect in international conventions by looking at Iran law.

2.2 Shipping Bill of Lading

2.2.1 Definition of Bill of Lading

Shipping bill of lading is a document containing a full specification of that cargo signed by the commander of the vessel or the one appointed by him for this purpose who commits to deliver the cargo through the vessel to the consignee in the destination. Shipping bill of lading or similar documents means the receipt of that cargo15. Following paragraph 7, article 53 of Iran maritime code, bill of lading is a document that the commander of the vessel or his representative issues and includes the specification of full cargo. Thus, the bill of lading is a document that the commander of the vessel or his representative gives to the consignor or his representative as receipt of cargo. Even with a contract of chartering, bill of lading should be issued since as we will see later, bill of lading is to prove the act of delegating the right of exploitation of vessel through chartering; while, bill of lading is to prove the cargo. Bill of lading should be reviewed in respect of the terms and content and its probative value and its form. In Hague convention, neither shipping bill of lading nor contract of transport is defined, and just in paragraph b of article 1, only the relation between contract of transport and shipping bill of lading is explained. In Iran maritime code, just in article 61, shipping bill of lading is likened to check. In Hamburg convention in paragraph 7, article 1, bill of lading is defined as a document indicating transport contract and delivery of goods to transport agent or its loading on the ship and by which the transport agent commits to deliver goods upon receipt of shipping bill of lading.

This definition is indeed based on the effects of shipping bill of lading and has not directly defined shipping bill of lading. According to the description in Black's Law Dictionary, the shipping bill of lading16 is a document showing the receipt of cargo by the transport agent, the existence of transport contract for that cargo and ownership document. In Rotterdam convention, "written transport document" and "electronic transport record," in paragraphs 14 and 18 of article 1, are documents issued based on transport contract and indicate a. Receipt of cargo and b. Transport contract. This definition is the one in Hamburg convention of shipping bill of lading and concerning this subject and commercial description of these documents in Rotterdam convention. It could be concluded that "written transport document" and "electronic transport record" are naturally synonym to shipping bill of lading; however, in terms of the scope. Due to not being tied to a special name or title, this expression includes a wide range and covers shipping bill of lading and else and shipping bill of lading is a subset of transport documents17. In other words, the mention of transport document in Rotterdam convention is the same as article 10 of Iran civil code in support of the principle of freedom of contracts and spread of open contract and the same as article 10 of Iran civil code, and it isn't a denial of specific contract. This doesn't mean denial of the expression "shipping bill of lading," and its credit and prohibition of its use in transport contracts subject to Rotterdam convention and it could not be said that Rotterdam convention has ended the shipping bill of lading.

2.2.2 Types of Shipping Bill of Lading

2.2.2.1 Clean Bill of Lading

"Clean bill of lading"18 refers to the one in which the declared explanations by the consignor concerning the appearance of cargo, packaging and its weight and volume conform with observations and approvals of vessel commander, and there is no controversy on the declared items by the consignor by the commander on B/L19. According to English judges, "clean bill of lading is the one without any (nega

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