Статья посвящена разнообразным функциям и свойствам коносамента, в частности, электронного коносамента. В статье рассматриваются функции коносамента как договора поставки, страхования и др. договоров, процессуальные функции – лишение права стороны на возражение по причине ее предшествующего поведения и доказательство, функция коносамента как ценной бумаги, в том числе, удостоверяющей титул на имущество.
In this article we take a look at some of the multifarious functions and features of the bill of lading.
The Bailment function
Not all entries on the bill of lading are terms of the contract and not all terms of the contract of carriage may for that matter appear in the bill of lading. Entries as to the condition and quantity etc of the goods are not terms of the contract of carriage at all and other details appearing on the obverse face of the bill of lading in the various boxes (such as the name of the consignee and of the notify party) amount to no more than commercial information rather than terms of the contract of carriage.
Entries relating to the description of the goods serve to assist the merchant (as bailor to the carrier) in discharging the onus of proof that rests on any bailor (under any bailment and whether under a bill of lading or otherwise) to show that his goods came into the hands of the bailee on a certain date and in a certain quantity in apparent sound condition and packed in a manner suitable for the intended carriage.
Once the merchant shows (by reference to such an indorsement or other external evidence) that the goods were out-turned in a damaged condition or short delivered, the carrier, as with any bailee, will bear the burden of disproving liability for the damage or loss and will only escape liability if, and to the extent that, he establishes one of the exceptions set out in Article IV rule 2 of the Hague Visby Rules;.
Equitable Estoppel
Entries on the face of the bill of lading (which may embrace not only the weight, quantity and apparent exterior condition of the goods and packaging but also payment of freight and the date of receipt/shipment) serve as prima facie evidence in favour of the shipper, and irrefutable evidence (in the sense of an estoppel) in favour of third parties taking up the bill of lading in reliance on the entries written thereon.
But as with any other representation any statement must be given with the authority of the carrier and whilst under COGSA 1992 a master has authority to issue a bill of lading for goods short shipped, or perhaps even not shipped at all, just as much as authority to make a representation as to the apparent condition of the goods or their weight, he has no authority to issue a bill of lading with any representation as to the latent (i.e. non apparent) condition of the goods.
However it is not unusual for bill of lading forms to contain a standard printed clause “said to be”, “said to weigh”, “shipper’s load, stow and count”, or “weight unknown”. Such words, as against the shipper, are a statement by the carrier that he has no reasonable means of accurately establishing the amount of cargo loaded on board and where the statement of the amount or quantity of the goods in the bill of lading is qualified by such words as “weight or quantity unknown,” the bill of lading is not even prima facie evidence against the shipowner of the amount or quantity shipped, and the onus is on the cargo owner to prove what was in fact shipped.
These disclaimers are valid at common law but perhaps not under the HV Rules if and where the shipper actually demands a bill of lading without the disclaimer in accordance with Article III Rule 3 Hague Visby Rules.
Express Contractual conclusive evidence clause
A contractual “estoppel” can be invoked without necessity to prove any reliance on the representation and may be equally effective as between the original bailor and bailee.
By its express terms a bill of lading may provide for an indorsement thereon as to weight or quantity etc to be conclusive evidence as to the matters therein stated in favour of all parties who are a party to the contract either originally or by transfer.
In cases of bulk shipments the charterparty terms may provide that as between owner and charterer the report of a nominated surveyor is conclusive as to quantity loaded, as to freight and otherwise. Where, as is often the case, the charterparty is incorporated into the bill of lading, the results of the survey may even be binding as against the owner.
However a charterparty clause providing for the loadport survey to be conclusive as to the quantity loaded has been held not to have been incorporated into the bill of lading by a provision in the latter that “all terms and conditions liberties and exceptions of the charterparty are herewith incorporated” since this was inconsistent with the “weight unknown” disclaimer on the face of the bill.
Contract function of the bill of lading
Except where the shipper is also the charterer, when it simply serves as receipt and no more, the bill of lading operates as prima facie evidence of the terms of the contract of carriage as between the original parties and as conclusive evidence in favour of third party transferees.
Mandatory law function of the bill of lading
The use of the bill of lading has an important function in attracting the application of the non-derogable compulsory Hague Visby Rules regime applicable to carriage of goods by bill of lading (but not sea waybills) to all but deck cargo, that is to say “cargo which by the contract of carriage is stated as being carried on deck and is so carried”: Art. I(c) Hague Visby Rules.
Assignment function of the bill of lading
The bill of lading, in conjunction with COGSA 1992, is the means of transferring the rights of suit in contract of the merchant under the contract of carriage to the party taking delivery; given that at common law there is no automatic transfer of contractual rights along with the transfer of the bill of lading.
Title function of the bill of lading
The bill of lading is an indicia of title to the goods it represents and often part of the means of transferring the ownership of the goods from seller to buyer (and from buyers to sub-buyers) under any contract of sale whilst ship at sea but it is quite possible for the title to pass without any transfer of the bill of lading at all or indeed quite independently of transfer and the statutory contractual assignment scheme under COGSA 1992.
Whilst strictly speaking title in goods (unlike possession) as a matter of law passes when it is intended to pass such intention is often to be found by a transfer of the bill of lading; especially where a letter of credit is involved.
Pledge function under contract of finance of the bill of lading
The bill of lading serves as the only means of transferring possession of goods (i.e. by pledge) for finance/security purposes whilst the ship is at sea. Possession cannot be passed by agreement and a change in possession must be effected by a delivery. The documentary title function of the bill of lading enables possession to be deemed to have passed to the pledgee (i.e. usually a bank lending money to the buyer) by delivery of the bill of lading as representative of the goods in circumstances where otherwise there would be no pledge at all; the goods being in the possession of the carrier and quite incapable of physical pledge to the pledgee.
Payment function under contract of sale of the bill of lading
The bill of lading is the principal element in the process of obtaining payment against presentation of compliant documents under the terms of a letter of credit opened by the buyer’s bank in favour of the seller. The indorsements on the bill of lading affirm to the buyer (and his paying bank where an LC is involved) due and full performance of the two main obligations of the seller in a C&F contract; namely that goods have been shipped and the freight thereon paid.
Insurance function of the bill of lading
The terms of the bill of lading and the indorsements thereon are also instrumental in determining the terms upon which cargo insurance is effected; insurance cover may extend only to goods shipped below deck but the cargo was shipped on deck under a bill of lading so endorsed.
Control function of the bill of lading
The bill of lading serves as a valuable means of an intermediate party (such as a bank) preventing delivery of the goods without assuming any liability on the bill of lading simply by withholding presentation of the Bill of lading and at the same time desisting from further transfer of the bill of lading. However, as discussed below, this can cause shippers problems where no presentation of the bill of lading is made at the disport.
Delivery function of the bill of lading
The bill of lading provides a high degree of protection to the merchant and his bank against forgery and fraud since the risk of mis-delivery against a forged bill of lading rests with the carrier but a carrier who delivers against a stolen generally indorsed bearer bill without notice of wrongdoing has no liability.
Electronic bills of lading
An electronic bill of lading (at least in pure electronic form) is probably not the same thing in law as a traditional bill of lading, but all the same it is, or can be made, functionally equivalent to one.
This is usually achieved through use of a ‘closed loop’ system whereby each and every party to the bill of lading as an original party or transferee is a member of a rule-based scheme enabling a hard copy bill can be printed off at any stage at the request of any party. There is of course no need for the bill of lading to be issued in a set of three parts with all the difficulties that involves and no difficulty at all with an electronic bill of lading in identifying in whose hands the bill of lading is at any point in time in the transit or with deciphering odd scribbles masquerading as indorsements on the reverse face of the bill written over the small print or with keeping complex written delivery records showing precisely who took delivery and when and how. Neither is there, perhaps most importantly of all, any problem with lost or delayed bills of lading and therefore no need for letters of indemnity to be used.
It would seem unlikely that an electronic bill of lading would, at least at this early stage in its use, be treated as a document of title (so that a pledge of the Bill of lading is regarded as a pledge of the goods themselves) but is possible to get around this difficulty in a rule-based scheme by providing for an imputed automatic attornment by the carrier to each successive holder of the bill of lading which would have the same effect and in any event the printing off for the purposes of a pledge of a hard copy would also obviate any difficulties in this regard.
A bill of lading in electronic form (or at least purely electronic form) is probably also not within COGSA 1992 (absent any statutory instrument in this respect as provided for by the 1992 Act) and it is also arguable whether the HV Rules would apply compulsorily to a bill of lading which is only available to transfer within a closed loop system rather than at will to any generic third party. These difficulties can however again be overcome; by providing in the former case for an express assignment/novation within the system and in the latter case for the express application of the Rules.
Автор: Paul Bugden
Источник: http://www.forwarderlaw.com/library/view.php?article_id=858