Carriage of Goods By Sea

Tutorial Discussion

1. What is Bill of Lading?

-A bill of lading is a legal document between the shipper of goods and the carrier
detailing the type, quantity and destination of the goods being carried. The bill of lading
also serves as a receipt of shipment when the goods are delivered at the predetermined
destination.

2. Enumerate the types of BL?

Six types of BL according to lecture slide

1. Straight Bill of Lading: This is typically used when shipping to a customer. The
“Straight Bill of Lading” is for shipping items that have already been paid for.  

2. Clean Bill of Lading: A Clean Bill of Lading is simply a BOL that the shipping carrier
has to sign off on saying that when the packages were loaded they were in good
condition. If the packages are damaged or the cargo is marred in some way (rusted metal,
stained paper,etc.), they will need issue a "Soiled Bill of Lading" or a "Foul Bill of
Lading.

3. Ocean Bill of Lading: Ocean Bills of Lading allows the shipper to transport the cargo
overseas, nationally or internationally.

4. Through Bill of Lading: Through Bills of Lading are a little more complex than most
BOLs.It allows for the shipping carrier to pass the cargo through several different modes
of transportation and/or several different distribution centers. This Bill of Landing needs
to include an Inland Bill of Landing and/or an Ocean Bill of Landing depending on its
finaldestination.

5. Multimodal/Combined Transport Bill of Lading: This is a type of Through Bill of

Lading that involves a minimum of two different modes of transport, land or ocean. The
modes of transportation can be anything from freight boat to air. 

6. Claused Bill of Lading: If the cargo is damaged or there are missing quantities, a
Claused Bill of Landing is issued. 

3. What are the functions of the BL?

-1-The Bill of Lading as A Receipt

This receipt function is a primary function of the “face” of a bill of lading, i.e. the
front side of the bill. Specific information to particular cargoes is generally entered in
numbered boxes. This information includes the description and weight or volume of
bulk cargoes or, in the case of containerised cargoes, the dimensions, number and seal
 numbers of the containers.

There will also be a statement regarding the apparent condition of the cargo on
shipment. Indeed, under the Hague-Visby Rules (Article III, rule 3b), a carrier is
obliged, if so requested, to issue a bill of lading which states the number or quantity or
weight of the cargo and its apparent order and condition.

Statements as to number and condition are representations which, under common law
and the Hague Rules, give rise to an estoppel against the carrier preventing him from
denying either the number or quantity of the cargo shipped, or its condition on
shipment. Under the Hague Rules, a bill of lading is prima facie evidence of the
quantity shipped. The effect is to place the burden on the carrier to disprove the
accuracy of the bill of lading once the bill has been transferred (or negotiated) to a
third party receiver.

The Hague-Visby Rules on the other hand, under Article III, rule 4, provide that the
bill of lading will be conclusive proof in the hands of a third party to whom the bill of
lading has been transferred in good faith. This means that even if contrary proof is
brought forward against the shipper, the shipper’s liability will have been
extinguished if the bill has been transferred to a third party in good faith.

2-The Bill of Lading as Evidence of the Contract of Carriage

It is clear, therefore, that sometimes the bill of lading can effectively be the terms of
the contract of carriage, and that in other circumstances it merely represents evidence
of the contract of carriage. It is vital to appreciate the different circumstances which
dictate which of the two possibilities applies. It has long been recognised that the
terms set out on the reverse of the bill of lading are only evidence of the contract of
carriage as between shipper and carrier. The contract itself will obviously have been
agreed before the bill was issued, i.e. at the time of booking the ship. If the terms of a
bill of lading do not reflect those of the earlier agreement, the shipper is not disbarred
from submitting evidence of the earlier agreement.

However, it is important to note that the bill of lading serves as conclusive evidence
of the bill of lading terms of the contract of carriage between the carrier and a bona
fide endorsee, i.e. the carrier is estopped from bringing evidence forward to the
contrary. This means that the third party may rely on it as the contract of carriage. In
summary, the position is, therefore, as follows:

(a) Whilst in the possession of the shipper, the bill of lading represents the contract,
i.e. it is merely evidence of it. The actual contract may be different from the bill of
lading.

(b) Once the bill of lading has been transferred or endorsed to a third party, the bill of
lading should not be treated as simply evidence of the contract. It may be relied on by
the third party as the contract itself.
3-The Bill of Lading as a Document of Title

Bill of lading is treated not only as a contract of carriage but also as a document of
title. Accordingly, constructive possession of the goods can be passed by endorsement
and delivery of the bill of lading from one person to another. The bill of lading thus
represents the goods, it was described as the “keys to the warehouse”.

It is accepted that when the term “negotiable” is used in the context of a bill of lading,
it merely means transferable. Whilst the term “negotiable” continues to be used, it
should be noted that a bill of lading is not a truly negotiable instrument in the sense
that an endorsee cannot pass by endorsement any rights in the goods greater than
those he already has.

In addition to its other characteristics as a receipt for the goods and as evidence of the
contract between shipper and shipowner, the bill of lading fulfils two distinct
functions:

1. It is a symbol of constructive possession of the goods which (unlike many such

symbols) can transfer constructive possession by endorsement and transfer: it is a
transferable ‘key to the warehouse’.

2. It is a document which, although not capable of directly transferring the property in

the goods which it represents, merely by endorsement and delivery, nevertheless it is
capable of being part of the mechanism by which property is passed.”

The transfer of constructive possession means that the new holder of the bill of lading
is entitled to claim the goods from the carrier at the discharge port or sue the carrier in
the event of misdelivery. The transfer of the bill of lading is not an automatic transfer
of the property in the goods – the transfer of the bill transfers those rights that the
parties intend to pass.

4. Is the BL negotiable instrument?

-A bill of lading possesses some of the characteristics of a negotiable instrument. It is

a document of title and it can be transferred by endorsement and delivery. But it is not
a true negotiable instrument because of the following 2 reasons :

l. It is not included in the definition of the term negotiable instrument as given in the
Negotiable Instruments Act.

2. The transferee of a bill of lading gets only the rights of the transferor of the
instrument. If the title of the transferor is defective, the transferee gets a defective
title. 'But in the case of a negotiable instrument a bona fide purchaser for value
without notice of defect, becomes a holder in due course and gets a good title in cases
 where the title of the transferor is defective.

5. Is Malaysia member to Hague or Hague Visby Rules?

6. What is the domestic law of Malaysia on COGSA?
7. Who are the parties to the contract of carriage?
-Seller/shiper and carriage
8. Who is the charterer?
-a person or organization that charters a ship
9. What are the obligations of the Shipper?
(1) Obligation to provide the agreed and properly packaged good
(2) Obligation to export goods in time for the formalities required
(3) obligation to pay the freight and other charges
(4) Indemnification obligation/Basis of liability/Responsibility for the fault

10. What are the obligations of the carrier?

-
11. Enumerate the exemptions of the carrier’s liabilities.

Uncitral
Unidroit principles
Uncitral model laws