Статья посвящена вопросам, связанным с правовой природой морской накладной. Судебная практика идет по пути признания морской накладной как документа, удостоверяющего наличие и содержание договора морской перевозки груза. В отличие от коносамента, морская накладная не является товарораспорядительным документом, однако в прочих отношениях морская накладная имеет то же значение, что и коносамент. Суд Генуи недавно отклонил требование, заявленное к агенту перевозчика, который подписал морскую накладную, но только потому, что истец неправильно определил агента как сторону договора морской перевозки.
The Tribunal of Genoa recently issued two decisions dealing with the legal nature of sea waybills. In both decisions the tribunal considered the extent to which the content of a sea waybill is relevant when identifying the parties to the contract of carriage and, consequently, when deciding on the defence of title to be sued.
Both decisions involved claims filed by an Italian fruit trader for damages incurred to consignments of fruit transported from Italy to the Far East by a liner shipping company.
Instead of filing claims against the shipping company, the plaintiff filed the claims against the shipping agent of the carrier, arguing that the relevant contracts of carriage had been concluded with the agent.
The shipping agent disputed the claims and raised the preliminary defence of lack of title to be sued, stating that it was not in fact a party to the contracts of carriage, which were concluded between the plaintiff and the shipping company.
The shipping agent argued that it had signed the two sea waybills “only as agent for the carrier” and had listed specifically the liner shipping company as the carrier. Therefore, it did not act as carrier under the relevant contracts of carriage.
The plaintiff responded that the sea waybill is a document which allows the consignee to obtain the delivery of goods at a destination simply by providing evidence of its identity (ie, confirming that it is the party named in the document), but that it cannot be considered as evidence of the contract of carriage or be used to identify the parties to the contract.
The Tribunal of Genoa recognised the shipping agent’s defence of lack of title to be sued and rejected the plaintiff’s claims on the grounds of the sea waybill’s content.
The tribunal explained that the sea waybill was introduced in response to:
- issues arising in the use of bills of lading; and
- advancements in transport technology.
The tribunal further stated that – in contrast to bills of lading – sea waybills are not negotiable documents of title, representing goods, and that the right to control the goods in transit and the right to claim their delivery at the destination port are not dependent on the sea waybill. The sea waybill acts as a non-negotiable receipt which consignees need not present to obtain delivery of the goods; they need only proof of identity.
However, after underlining the differences between the bill of lading and the sea waybill, the tribunal stated that the two documents are similar to the extent that both constitute proper evidence of the contract of carriage’s terms.
In particular, the tribunal affirmed that the sea waybill is prima facie evidence of the contract of carriage since it is issued after the shipper has delivered the goods to the carrier and details the parties to the contract of carriage, the goods, the port of origin and the port of destination.
On the issue of identifying the parties to the contract of carriage, the tribunal found that the shipping agent had signed the sea waybills as an agent for the carrier and therefore could not be considered a party to the contracts.
The tribunal concluded that the plaintiff failed to identify the carrier and thus did not file action against the proper defendant. The claims were therefore rejected.
Автор: Luca Di Marco
Источник: http://www.internationallawoffice.com/Newsletters/Shipping-Transport/Italy/Dardani-Studio-Legale/Tribunal-confirms-sea-waybill-is-evidence-of-contract-of-carriage?utm_source=ILO+Newsletter&utm_medium=email&utm_content=Newsletter+2017-01-04&utm_campaign=Shipping+%26+Transport+Newsletter