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
18.104.22.168 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 (negative) terms and conditions concerning the appearance or packaging of goods”20 or “without no imposed condition or note that declare the incomplete status of goods or packing”21. Clean B/L is very significant in international trade, and the tradesmen do their business and buy and sale relying on the content of this kind of bill of lading and the global payments usually are done based on shipping B/L. The advantage of clean B/L is that in the relation between transport agent and consignor; it has evidence on the accuracy of its content and as previously mentioned, if the transport agent claims against the contents of B/L, he must prove it. On the other hand, if clean B/L is in control of goodwill third party, including consignee, shipping bill of lading would be under protection of the principle of inattention to claims and belief of Estoppel and this legal evidence concerning the relation between transport agent and the third party holding bill of lading or transport document. This turns to definite evidence, and the transport agent will be deprived of the right of proof against the inclusion against third party holder22.
22.214.171.124 Unclean Bill of Lading
Unclean bill of lading or claused bill of lading is the one including expressions indicating a defect in goods or package23 or the transport agent performed reservation as will be mentioned in the next paragraph. Concerning defaced items, unclean bill of lading neither benefits from the right of legal evidence between transport agent nor benefits from the principle of inattention.This is done to claims in case of transfer to the third party since the content of this document doesn’t build trust for the holder concerning the defaced items to make the regulator support such holder: he has received damaged bill of lading and cannot claim that trusting to the content of bill of lading made him lose.
In Hague convention and Visby protocol and Hague-Visby regulations, clean or unclean bill of lading is not directly or indirectly mentioned and only in paragraph 3c of article 3, Hague convention and Hague-Visby regulation, referring to the application of reservation, clean bill of lading could be extracted (using the different concept). In Hamburg convention, clean or unclean bill of lading is not defined; yet, in paragraph 2 of article 17 of this convention, final bill of lading is mentioned that means a clean bill of lading. On the other hand, in paragraph 2 of article 16, when nothing is mentioned in the bill of lading concerning the appearance of goods, it could be considered as evidence of a clean bill of lading. Moreover, in paragraph 1 of article 16 on the application of reservation, it is possible to extract the concept of a clean and defaced bill of lading. In Rotterdam convention, despite the attempt of authors on its comprehensiveness.In article 1, including definitions, clean and defaced transfer documents are not defined and just in paragraph 3 of article 39 (such as paragraph 2, article 16 of Hamburg convention), no mentioning of the appearance of goods is considered as the evidence of its completeness and the concepts of clean and defaced transfer documents could be extracted from this paragraph. On the other hand, in article 40, application of reservation in the transfer document is defined from which the concepts of clean and defaced bill of lading could be extracted. From article 40 and paragraph 3 of article 29 of Rotterdam convention, it could be concluded that clean and defaced transfer documents are the same as clean and defaced bill of lading are defined.
2.3.1 Legal Identity of Vessel
The vessel is a moveable property since it could be traded; thus, it could be a subject of economic right. The vessel is considered moveable property since it is designed for moving from one place to another so that in article 42 of Iran maritime code, inspiring from civil code that mentioned in article 21, all kinds of small and big vessels, boats and baths built on river and sea and they could be considered moveable property.However, since the moveable property is itself divided into material, spiritual and contractual categories; the vessel is considered a moveable material property that according to article 19 of civil code it is considered as an object that is possible to move from one place to another without any damage to itself or its place24. Thus, concerning above discussion and referring to articles 29, 30 and 32 of the civil code, the right of vessel owner concerning vessel is material, i.e., the owner has financial right concerning the original and benefits of the vessel. Thus, the legal regulations considered for moveable properties are effective for the vessel; for example, if someone leaves all his moveable properties for another and vessel is among his moveable properties, his will would also include a vessel. Other contracts could be applied on the vessel the same way unless their implementation is subject to a certain arrangement that is predicted by law.
2.3.2 The Similarity of Vessel to Immoveable Properties and People
The fact that vessel is moveable property and moveable property regulations governing it does not contradict with the nature of certain rights imaginable for it, which makes it subject to original legal system and distinguish it from other moveable properties. Among some distinguished Arab jurists, such as Mostafa Kamal Taha, relying on the common general laws governing moveable and immovable properties, the belief is that it is possible to get the vessel ownership during a long time. By this belief, this group considers ship as immoveable property25; thus ignoring the laws and regulations explicitly expressed in maritime laws governing the ship ownership. The legal basis which this group relies on is similar to regulations of article 731 of the Code of Civil Procedure and onward that in 1982 was realized as contrary to Sharia standards by guardian council. On the other hand, although vessel is considered moveable property, its status including registration, nationality, etc. gives it real legal entity; thus, the consequences of using vessel returns to it; at the end, it could be realized as a creditor, the debtor or liable the same as a legal person. All these legal consequences are due to the assumption of legal status by granting nationality26.
2.3.3 Vessel Chartering Contract
Maritime law has defined vessel chartering contract as, “the written document hold between vessel owner or his certified representative and renter determining the vessel chartering terms for certain time or several trips between ports”27. It is clear that vessel chartering contract or charter party gives this possibility to the owner to rent its vessel the same as other properties while keeping its ownership. The manner of transferring vessel exploitation right to others is different and requires a certain condition. Concerning the significance of vessel chartering contract in maritime transport will be discussed later. What could be inferred from the definition of shipping transfer contract included in Iran maritime code and international regulations and its brief analysis is that the contract held between the consignor and transport agent should include shipping bill of lading or other similar documents. In other words, the contract between consignor and transport agent is considered shipping transport contract if the shipping bill of lading or similar documents are issued. Thus, issuing the bill of lading by transport agent at the time of receiving goods from the consignor has an essential role in transport contract; so the credit and significance of shipping bill of lading should be searched in the bill of lading. Besides, it should be considered that this is not unique to the relations between the consignor and transport agent, but it is true about the relation between consignor and consignee; especially when there is some controversy between consignor and consignee28. Due to the significance of the bill of lading in shipping transport, it is required to explain this issue further.
Article 60 of maritime code has specified the minimum conditions that should be mentioned in the bill of lading including:
1) Name of vessel
2) Name of the port of loading, date of loading and name of the port of discharge
3) Mark, description, type of cargo and number of packaging and total
4) Net and gross weights and volume of cargo
5) Name and address of consignor, transport agent and consignee
6) Terms of lading, transport and unit rate
7) Number of versions of the bill of lading
Since the above article is not included in the referred items in article 190 on the crimes and offenses, it can be concluded that failure in following article 90 at the time developing bill of lading is not considered violation, and even if it is considered violation, it doesn’t lead to invalidity of shipping bill of lading and thus transport contract. Thus, it could be concluded that the content of the bill of lading is not confined to them, but it could be increased or decreased based on the agreement of parties. Thus, the main items of the bill of lading could be studied as follow: The name of vessel, by which the cargo is transported, should be mentioned in the bill of lading according to the vessel name law. The significance of this issue is on that the consignor and consignee of cargo will be able to realize the vessel carrying the cargo and be informed of the time of its arrival and to be prepared for discharge. In the bill of lading, the date of issue should be included. In Rotterdam convention, the items included in paragraph 2, article 26 including a. the appearance of cargo, b. the specification of the transport agent, c. the date of cargo receipt or date of lading according to the date of issuing transport document.
An important issue in shipping transport is the status and manner of paying the freight. According to the type of sale contract in international sales, or representative contract, the freight might be paid by the consignee or consignor. This is while the transport agent is informed of the sale contract and the controversy between consignor and consignee might lead to confusion of the transport agent. Moreover, the consignee could become obliged to pay freight and demurrage due to the right of lien by the transport agent even though according to the sale contract he has no responsibility and commitment to pay it. Thus, in paragraph 1h, article 15 of the Hamburg convention it is mentioned that the manner of freight payment should be mentioned in the shipping bill of lading.Paragraph 4 of article 16, the content of the bill of lading concerning freight and demurrage is considered a legal evidence; however, if the bill of lading is transferred to a goodwill third party, proving opposite of bill of lading concerning these two items against holder of bill of lading is not reliable. This is confirmed by Hamburg convention due to the fact that the status of freight and demurrage has direct influence on the cost price of the goods subject of bill of lading and concerning transferability of bill of lading, the tradesmen calculate the total value of goods according to content of bill of lading and trade it by documents.
3.2 Vessel Name, Date of Loading and Contract’s Parties
The name of the vessel, by which the cargo is transported, should be mentioned in the bill of lading according to the vessel name law. The significance of this issue is on that the consignor and consignee of cargo will be able to realize the shipper’s vessel and be informed of the time of its arrival to be prepared for discharge. Date of loading should be mentioned in the bill of lading which is very significant since it indicates the time of delivery of goods to vessel commander. Thus, the criterion for the beginning of the delegation of commander in the storage of cargo, transporting and his responsibility in case of damage or delay is the time of issue. In addition, in marine cases, it is possible to realize by this date whether the consignor has performed his commitments on the delivery of cargo at the agreed time or not. According to article 63 of marine law, the bill of lading should be issued within 24 hours of loading the cargo. To this end, the bill of lading should be signed by the commander or someone assigned by him29. According to paragraph 5, article 60 pursuant to Article 61 of marine code, the name of parties to transport and contract should be mentioned in the bill of lading. Thus, in the shipping bill of lading, the name of the consignor, transport agent and consignee should be mentioned; however, determining the name of consignee seems not that much necessary as mentioned in article 61. In other words, in this regard, the bill of lading has three conditions as follow:
First condition: Issuance of shipping bill of lading to the order of a certain person
One condition inferred from article 61 is the one where the name of consignee will be completed in the related column in the bill of lading and it is issued to the order of certain person. In this condition, the bill of lading is either issued to the name of consignor or consignee in the port of discharge. This bill of lading is named and its legal holder is someone whose name is included.
Second condition: Issuance of the bill of lading on the bearer
Sometimes, it might happen that the consignor is neither inclined to deliver the goods to the consignee name not to mention his name as consignor; thus, he agrees with the commander or transport agent to issue a bill of lading on bearer’s name. in this condition, the holder of the document is considered owner and liable to take the goods30 and the transfer right could not be foreclosed. In case of transfer, there is no need to write anything on the bill of lading, rather, the transfer will be done by bills31.
Third condition: Issuance of the bill of lading payable to order
Another condition considered by the regulator in the issuance of a bill of lading is the issuance of a bill of lading payable to the order. In this condition, the bill of lading is issued payable to the order of a certain person who could transfer it to another by endorsement. In such condition, endorsement should be considered subject to trade regulations. Thus, firstly, endorsement should be signed by endorser and secondly, the date and name of someone to which bill of lading is transferred might be included in endorsement32.
3.3 Cargo Description and the Number of Bill of Lading
Bill of lading is the main document for receipt of cargo and goods, thus, it should guarantee type, measure, number of package and marks of loaded goods on the vessel. It is clear that in case of loss or confusion of goods, these marks and specification could help to solve the problem. In addition, bill of lading should be written at least in four versions, the first one is the main one which is issued for consignor, the second version is for consignee, the third version is for the commander and fourth version is for the owner of the vessel or his representative33. However, it is frequently seen that in practice, bill of lading is written in two versions: one is within commander of a ship which is kept for transport agent and the second version is given to the consignor34. I could be inferred from the expression “at least” mentioned in law that the receipt of bill of lading is mostly written in more than four versions and this could be for prevention of emergence of dangers such as theft or demolishing of goods. Iranian legislator has not referred to all dimensions of bill of lading; one of them is this question that if bill of lading is issued in several versions and in order of certain person or on bearer’s name, whether it is necessary to mention this issue in all versions or not and if there is controversy between the versions of bill of lading, which version is valid and what is the task of commander in this condition. In maritime laws of most countries, in addition to responding to these questions, other items have also been considered35. For example, in Switzerland maritime law it is mentioned that in case of the request of commander, the transport agent or consignor, the bill of lading should be signed by the consignor36. Or if the main version is presented simultaneously by several holders, the commander will deposit the goods to the official competent authority or third party. Concerning depositing goods before the entrance to the port of discharge, Switzerland maritime law has declared that the shipper or transport agent could deliver goods and follow new orders of consignor when all main versions of the bill of lading are presented to him37. Anyway, as previously mentioned, it is required that the bill of lading be signed by the commander; however, in practice, representative or someone assigned for this purpose signs it. Moreover, it is required that the bill of lading to be signed by the consignor and the necessity for the signature of consignor is that it leads to the credit of the bill of lading. In cases where the bill of lading lacks the sign of consignor, transport agent could allege it against consignor relying on the terms mentioned in the bill of lading; however, on the condition that evidence makes it clear that the consignor is informed of the terms and conditions of the bill of lading and accepted it.
Concerning above-mentioned discussion, bill of lading is fully effective on the relation between the transport agent and consignor and it could be considered as a document or evidence on holding transport contract, terms, and the agreed rent. In addition, the date mentioned in the bill of lading especially indicates delivery of goods to transport agent under terms mentioned in the bill of lading. Here, this question is raised that whether the reality and authoritativeness of content of the bill of lading concerning the relation between transport agent and consignor should be absolutely accepted or considered as a relative? Maritime law has not provided an answer to this question; however, the laws of some countries have clearly answered this question and not considered certainty of a bill of loading as absolute. Thus, despite the mentioned items, it is possible to prove the claim under some condition in the bill of lading38. For example, the transport agent could claim that the amount of goods mentioned in the bill of lading is not delivered to him. It’s clear that according to general laws, to prove the opposite of what is mentioned in the document in written form is just possible by presenting another written document. Thus, it’s the duty of transport agent to take the responsibility of proving this claim using other documents. The authoritativeness of bill of lading is not unique to contract parties, i.e. consignor and transport agent; rather it could be extended to other agents such as the consignee or insurance company. However, this extension should not be considered an exception to the principle of relativeness of contracts including bill of lading, rather, it means that certain goods loaded on ship have economic consequences for others; thus, despite the fact that they have not role in making regulations of contract, due to personal benefits, they are committed to performing them. Thus, in case of any controversy between consignor and consignee due to not delivering the goods, the consignor or consignee, relying on the bill of lading, could prove that he has performed his obligations toward consignee. Moreover, if the goods that are insured against maritime dangers and risks suffer from damages, the proving of any of these events is possibly referring to the bill of lading and relying on it; i.e. by presenting a bill of lading, it becomes clear how much of goods is damaged and how much is intact. By these explanations, it could be perceived that the bill of lading is not effective on the relation between parties; rather, it could be relied on concerning other people whose name and signature is not included.
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